In the wake of the US mass surveillance revelations back in the summer of 2013, a common reaction over dinner, on social media, or in the news was to shrug it off as a necessary evil. It was the airport security conundrum all over again. If you were faced with one line to board plane A, where everyone has to follow stringent security measures, and another to board plane B, for which X-ray machines, liquid limits and pat downs did not apply, which would you take? Given our constant red-alert status, few of us would have the nerve to choose B.
People reacted to the confirmation of mass surveillance in the same spirit; readily accepting the annulment of their privacy to help governments preempt acts of terrorism (also known as the Eric Schmidt* take on upstanding citizenry: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”) This was true back in 2013 and, if we’re to read into the French people’s general apathy at the passing of a mass surveillance bill by parliament this week, remains true today.
The Charlie Hebdo and Kosher supermarket attacks terrorised the French capital in January. For a culture which associated gun violence and hostage taking with fiction or other countries, the killing of 17 people in Paris brought home the ‘war on terror’. Even on a subconscious level, the shootings by the Kouachi brothers and Amédy Coulibaly succeeded in instilling fear in every Frenchman and woman who could now imagine themselves, or their husband, or wife, or mother, or child, being a victim of terrorism on a trip to the corner market.
How else could we explain the inconspicuously named “surveillance bill” (loi de renseignement) – allowing authorities to tap phones and emails, place cameras and recording devices in people’s homes, and collect metadata** from communications providers without the need for a warrant – being voted by a 438-86 majority in parliament without so much as a rumble on the streets? True, some members of Amnesty International and other civil rights groups made it onto the Invalides lawn***, along with a sprinkling of citizens, ahead of Tuesday’s vote – but even media outlets sympathetic to their cause felt the need to mention that this was a gathering of a “modest thousand” protesters, while consciously making an effort to keep cameras zoomed in on the crowd as much as possible.
The French Prime Minister, Manuel Valls, has been quick to deny comparisons of the bill to the infamous United States Patriot Act of 2001. And, he’s right. For one, the National Security Agency’s blanket surveillance programme – once considered to be covered by section 215 of the Patriot Act – was judged unlawful by a US Court of Appeals this week. The three federal judges overseeing the case unequivocally stating: “We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program”.
Second, in the context of 21st century terrorism, US policymakers had no precedent to draw on when drafting and voting in the US Patriot Act. Between then and now, the efficacy of the NSA’s bulk collection of digital metadata in preventing acts of terrorism has been debunked. In December 2013, both a US federal judge and a review by President Obama’s advisory found that there was not “a single instance ‘in which analysis of the NSA’s bulk metadata collection’ had stopped a terrorist attack.”****
Yet, the French government has ignored the precedent, with Valls denouncing criticisms of the bill as a mass surveillance tool as “fantasy”. In March, he was reported as saying the law “will not [have] any grey zone […] there will not be any mass surveillance.” The “black boxes” that every communications provider would be required to install, should the bill pass into law, tell another story. They would allow for a bulk collection of internet users’ metadata – information which would then be filtered using algorithms engineered to detect characteristics associated with terrorist behaviour.
The current administration is adamant the programme will only target people who are suspected of being involved in terrorism. But, again there is a precedent that shows otherwise. The documents disclosed by Edward Snowden reveal a trail of abuses by the NSA: from tapping the German Chancellor’s phone to NSA agents spying on their current or former lovers. Even if agents from the French GIC (roughly translated: inter-ministry inspection association) proved themselves to have more self-restraint than their American counterparts, the ability of the “black boxes” algorithms to detect behaviour related to genuine terrorist intent has been brought into question. Using the government’s own estimates that only around 3000 jihadist sympathisers would be under surveillance, directors of research at Inria – France’s public institute on computer science – have said that the probability of a real terrorist being identified by the system is of the magnitude of 0.5%; which is, to use their own choice of word, “negligible”.
The bill is now due for a vote in the Senate on May 20th. Given its oppressive nature on civil liberties and the evidence that mass surveillance does not hinder terrorist threats, the French people would only be doing themselves a disservice should they accept the bill on the basis that the majority have nothing to hide. At the end of the day, it is not a question about having something to hide: it’s about protecting the right to live without subconsciously second-guessing what you say, or write, or how you behave, in the knowledge that real privacy doesn’t exist anymore. For some, such constraints may not apply. But, unlike the airport security conundrum, unlimited mass surveillance is not a choice presented to an individual within a subset of a population. As soon as it’s allowed to take effect, there’s no B nor A to choose from.
* Google CEO Eric Schmidt made this comment during an interview in 2009. He was being asked “whether users should be sharing information with Google as if it were a ‘trusted friend'”. Also see Glenn Greenwald (2014) No place to hide, p. 170.
** Metadata in this context includes everything but the content of a phone conversation or email communication. For example, the time, duration, and recipient of your call; the number of emails you send or receive and to/from whom; your whereabouts tracked from your phone’s GPS.
*** A short distance from l’Assemblée Nationale, the French parliament.
**** Glenn Greenwald (2014) No place to hide, p. 250.