Abstract
Taking France as a case study, this article reflects on the ongoing legalisation strategies pursued by liberal states as they seek to secure and expand the Internet surveillance programs of their domestic and foreign intelligence agencies. Following the path to legalisation prior and after the Snowden disclosures of 2013, the article shows how post-Snowden controversies helped mobilise advocacy groups against the extra judicial surveillance of Internet communications, a policy area which had hitherto been overlooked by French human rights groups. It also points to the dilemma that post-Snowden contention created for governments. On the one hand, the disclosures helped document the growing gap between the existing legal framework and actual surveillance practices, exposing them to litigation and thereby reinforcing the rationale for legalisation. On the other hand, they made such a legislative reform politically risky and unpredictable. In France, policy-makers navigated these constraints through a cautious mix of silence, denials, and securitisation. After the Paris attacks of January 2015 and a hasty deliberation in Parliament, the Intelligence Act was passed, making it the most extensive piece of legislation ever adopted in France to regulate secret state surveillance. The article concludes by pointing to the paradoxical effect of post-Snowden contention: French law now provides for clear rules authorising large-scale surveillance, to a degree of detail that was hard to imagine just a few years ago.
Highlights
In January 2008, a meeting took place in the office of President of France, Nicolas Sarkozy, at the Élysée Palace
The “Sixth Eye” deal failed over the Central Intelligence Agency’s (CIA) refusal to conclude a nospy agreement with France, and in 2011, a more modest cooperation was eventually signed between the National Security Agency (NSA) and the DGSE under the form of a memorandum—most likely the so-called LUSTRE agreement revealed in 2013 by NSA whistleblower Edward Snowden (Follorou, 2013)
In 1991, following two condemnations by the European Court of Human Rights (ECHR) pointing to the lack of detailed provision surrounding both judicial and administrative wiretaps, the government rushed to Parliament to pass the Wiretapping Act, which provided the first comprehensive legal framework regulating the surveillance of telephone communications (Errera, 2003)
Summary
In January 2008, a meeting took place in the office of President of France, Nicolas Sarkozy, at the Élysée Palace. The “Sixth Eye” deal failed over the Central Intelligence Agency’s (CIA) refusal to conclude a nospy agreement with France, and in 2011, a more modest cooperation was eventually signed between the NSA and the DGSE under the form of a memorandum—most likely the so-called LUSTRE agreement revealed in 2013 by NSA whistleblower Edward Snowden (Follorou, 2013) Another agreement was struck in November 2010 with the British GCHQ. To provide an empirical analysis of this process of legalisation, the article uses the methodological toolbox of contentious politics, a sub-field of political sociology (Tilly & Tarrow, 2015) It first looks at historical antecedents of legalisation and contention around communications surveillance in France. The “SAFARI affair”, named after the codename of the project, played an important role in the adoption of the French personal data protection framework in 1978 (Fuster, 2014)
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