The French Parliament is currently discussing the Global Security Law Proposal, which aims to create a “continuum of security” by reinforcing police powers and private security agents’ prerogatives. While this proposal may be a way to make security more efficient, a quick dive into two specific provisions of this text raises questions about the conciliation between security and liberties.
The laudable goal of the Global Security Law Proposal
The proposal is a response to recent attacks on the police, including the storming of a police station in the Paris suburb Champigny-sur-Marne and the shooting of two police officers in the town of Herblay. Both events occurred in October 2020 and have led to growing concern that the police could continue to be targets of attack. With this in mind, the Global Security Law Proposal aims to make France’s security services better protected and more efficient. Among the eight titles of the proposal, Title III and Title IV constitute the major legal input of this text and focus specifically on two key actors in the security process: local police and private security agencies, which the government hires to fulfill a variety of missions, including serving as security agents, guard service agents, or money transporters. By specifying and reinforcing their respective powers, the proposal attempts to enhance the cooperation of all actors – local and national police officers, private security services – engaged in the security area and to give them tools, such as drones and individual cameras for police officers, to conduct their tasks more safely and efficiently.
The proposal gives more powers and more protection to police officers and private security agents participating in security missions. More powers, first, by allowing the use of new technologies, such as drones – which would be the first creation of a French legislative framework. More protection, secondly, by creating an identification provocation offense, which would punish the release, on social media, of a video showing the face or the identification number of police officers while they are conducting a law enforcement action. These two innovations are facing widespread criticism since the tabling of the proposal before the Parliament on October 20.
The unclear limits of the use of drones for surveillance
Article 22 of the proposal would add into the Internal Security Code – the French legal code collecting all laws and regulations related to internal security – a chapter concerning “airborne cameras” to regulate their use, particularly by police powers. According to the draft article, the use of drones can be justified “to prevent personal injury or property damage in places particularly exposed to risks of attack, to prevent terrorist attacks, to record an infringement and allow their perpetrators to be pursued thanks to the evidence collection” or “to protect public facilities, regulate transport stream, to monitor coastlines, help people or anticipate natural or technological risks.” Because the list is vague and includes such a diverse set of justifications for drone use, it is provoking strong objections from various institutions in France.
The National Commission for Data Protection and Liberties, a French independent authority, rang the alarm concerning this part of the draft law. A recent public report (February 2021) highlights the diversity and the unequal importance of the purposes listed in Article 22. The main problem concerns the possibility “to record an infringement and allow their perpetrators to be pursued thanks to the evidence collection” as it allows a potential disproportionate – and not necessary – use of these new technologies. Indeed, tackling many infringements does not require the use of such airborne cameras. For the Commission, their use must, therefore, be limited to high thresholds of gravity, such as counterterrorism operations.
In response to these critics, the Senate Commission of Law – a structure composed of 49 senators which had to write a report on the proposal before its discussion and its vote by all the senators– managed to add to the initial proposal a range of additional safeguards against misuse of these technologies. For example, it added the obligation, before any use of drones, to request approval from the departmental authority or the public prosecutor. This modification is certainly a reaction to a Conseil d’État decision from May 2020 in which it stated that the use of drones to help enforce public health measures during the national lockdown must stop immediately due to violations of data protection. Indeed, the drones used were able to recognize the faces they were filming and to store those data.
After adding these modifications aimed at protecting civil liberties, Article 22 was adopted by the Senate on March 18, as well as the highly controversial Article 24, which I will discuss next.
The identification provocation offense: a limitation of freedom of expression?
Article 24 criminalizes the release of “the face or any other identification elements” of a police officer while in a law enforcement action when the ostensible purpose is to “harm his or her physical or psychical integrity.” The commission of this offense would be punished by a fine or, in rare cases, by a jail sentence.
In its initial version, this article, as adopted by the deputies (the members of the National Assembly, which along with the Senate composes the French Parliament), was integrated into the 1881 Freedom of the Press Law. It was therefore considered as a new limitation to the Freedom of the Press. A strong protest movement against it emerged among attorneys, NGOs, and journalists’ unions asking for modification of this article. The Senate Commission of Laws accepted these requests and modified the article on March 3. Instead of amending the 1881 Law, senators chose to create a new infringement in the Criminal Code called the “identification provocation offense.” Thus, this offense is no longer a direct restriction of the Freedom of the Press, but becomes an independent criminal offense. However, the deletion is only a symbolic victory because a journalist could still be prosecuted and be sentenced for having published videos under Article 24 of the proposal.
Even after this modification, critics are still objecting to adopting this new law. France’s independent “defender of rights,” Claire Hédon, urged the Parliament to reconsider this article as it potentially poses a severe attack on liberties, including the right to privacy and the right to information. She also underlined the importance of publicity to the completion of the Defender of Rights’ oversight duties. Without the publication of these interventions, she will lose some tools to fulfill one of her main responsibilities: the effective control of security activities and, especially, the control of the respect, in their missions, of ethical working methods.
Dunja Mijatović, the commissioner for Human Rights at the European Council, also asked the French Senate in December to modify the proposal, stating that Article 24 appears to be a “breach of the freedom of expression”
Despite these calls for adjustments to the law, the Senate adopted the proposed law on March 18 with minor modifications. Among them, the mention of “the release of the face or any other identification elements” was removed from the final version of the text, as it was the most unclear disposition of the text allowing potential freedom of expression abuses. However, those modifications are not sufficient to reassure the large majority of civil society that is still denouncing the law’s disproportionate violation of the freedom of expression.
The proposal has been reviewed by a Joint Committee – the Commission mixte paritaire composed of deputies and senators – on March 19, because the version adopted by the National Assembly in November 2020 and the one adopted by the Senate on March 18 are different. To be approved, the proposal needed to be adopted in the same terms by the two assemblies. The Joint Committee, thus, worked on a proposal that unified the two versions. It reached a compromise on March 28, inserting Article 22 as well as Article 24 – with the Senate’s modifications. The name of the proposal was changed to “the law proposal for a liberty-preserving global security.” Unfortunately, this new designation does not change the disputable provisions of the text: The context to use drones is still very vague and the identification provocation offense is still a direct limitation to freedom of expression. The National Assembly and the Senate have to approve the agreement proposal for it to become a law. The Senate approved, without any restrictions, the agreement on April 7. The National Assembly also gave its approval to the text on April 15.
The Global Security Law Proposal: An illustration of the law-making crisis in France?
This proposal, and how it’s been developed, is an illustration of an abuse of the law-making process that is particularly concerning in the French security domain. The initiative of this proposal was quite uncommon: It was a law proposal – parliamentarian initiative – and not a law project – governmental initiative – as 80 percent of the law’s initiatives since the beginning of the 5th Republic in 1958.
Although the origin of the proposal seems a good sign of the vitality – or revitalization – of the parliamentarians, the exact opposite appears to be the case. The parliamentarian initiative was merely a smokescreen as the government was the thinking head behind the proposal. The consequences for France are concerning because “the Government deprives the Parliament and the civil society of a debate on the impact of the proposal as well as the juridical expertise from the Conseil d’État as it is required only for law project” said the National Consultative Commission for Human Rights. Indeed, law projects are surrounded by safeguards to avoid any excessive legislative initiative from the executive. The French government avoided, on purpose, this heavy control procedure by asking deputies to launch a law proposal exempt from these procedures.
The Conseil constitutionnel: The last bulwark for liberties.
The law-making process behind the Global Security Law proposal shows that, when it comes to security matters, French civil liberties, as well as constitutional procedures can be very limited, which raises questions about the respective importance of each principle: liberties and security? Liberties before security? With this law, it seems that France has chosen the third path: Security before liberties.
Now that this text has been approved by the National Assembly and the Senate, one last, very efficient, procedure could be implemented. Indeed, the Conseil constitutionnel could invalidate the entire law or certain articles if they violate constitutional principles. This jurisdiction oversees the constitutional control of laws between their final approval by the parliament and their enactment by the president. Only a few authorities can ask the Conseil constitutionnel lo lead this control: the French president, the prime minister, the president of the Senate, the president of the National Assembly, and 60 deputies or senators. The French prime minister promised to refer to this procedure, before the enactment of the law proposal. He will, thus, have to transfer the final version of the proposal, adopted in the same terms by the two assemblies, to the Conseil constitutionnel which will control its constitutionality. Let’s see if he honors his words…