Back in July 2014, La Quadrature du Net, Paris-based digital rights advocacy NGO, was summing up the few developments around the proposed anti-terrorism draft law:
This new bill institutes a permanent state of emergency on the Internet that allows the judicial system to be largely bypassed and favours instead recourse to police and administrative systems that, besides failing to guarantee fair hearing, are largely disproportionate, ill-equipped and thus ineffective in reaching the stated goal of fighting terrorism.
What is my post about?
As the bill was to be discussed in the Parliament, la Quadrature du Net has launched a dedicated mini-website to help inform and educate the public about everything one needs to know regarding the measures in the draft.
This post is not aimed at analysing the bill and its possible impact on civil liberties and, more broadly, digital rights in France. The parliamentary debate has kicked off on Sept 15 and will resume on Sept 16.
It is urgent to have more attention drawn to this dangerous text; yet, I realised that French impaired completely ignored the ongoing fight. The post thus contains a tentative translation in English of the most important articles from the bill. Amendments have been proposed as well, but I will hopefully get to them later. If you wanna help to translate, leave a comment.
The draft law’s most noteworthy articles
A range of dispositions exist in the text. Below, I solely discuss the ones that relate to digital freedoms.
Article 3: an act of terrorism to include the dissemination of information on how to make a bomb
More specifically, the action of disseminating, especially on the internet, plans to fabricate a bomb will be considered as an act of terrorism. Such publication, if targeting ‘undetermined audience’, is already punishable by up to three years in jail and a 45,000-euro fine. The draft law would thus enable the assimilation of such publication with acts of terrorism and allow the application of already existing harsh penalties for such deeds.
Article 4: “glorification of terrorism” online (“apologie du terrorisme”)
The act of advocating for terrorism on the internet would be punishable by five years imprisonment and a 75,000-euro fine. When such “advocacy” for or the mere “glorification” of terrorism occurs on publicly accessible websites, the penalty is increased to seven years imprisonment and 100,000-euro fine. According to the draft law, propagating such content on the Internet becomes an aggravating circumstance.
NB: those advocating for or glorifying acts of terrorism were already punishable under Law No. 1881 for the freedom of the press. Art. 4 of the anti-terrorism draft actually aims to transform such misdemeanours into criminal offences by inscribing them in the Penal code. Such inscription would mean harsher penalties (e.g., seizures, immediate arraignment, extended limitation period).
Article 5: swift identification of ‘terrorist apprentices’ sought
The bill creates a new act of terrorism: the crime of individual preparation of acts of terrorism. This is aimed to fight “lone wolves”, according to France’s Minister of Interior parlance. When unravelled, the elements of the offence illustrate that the text wants to prevent acts of terrorism at the earliest, by sanctioning the preparatory acts which “aim to seriously disturb public order by intimidation or terror”.
Two factors would thus come into play: the fact of seeking “substances likely to endanger others” in addition to the search for information on people, or the normal browsing of a website “leading directly to the perpetration of terrorist acts or advocating for such”. The only exception would be when the browsing relates to the normal practice of journalism, of scientific research or in order for such information to be used as evidence in court. Excluding these exceptions, such acts would be punishable by ten years jail and 150,000-euro fine.
Article 6: anyone could demand ‘terrorist’ websites to be blocked
Responding to a complaint by a ministry or by anyone who’s somewhat concerned by terrorist websites, the urgent applications judge could order the blocking of websites advocating for terrorism in case these were “obviously unlawful”.
The offences of incitement to terrorism or glorification of terrorist acts would then be subject to a series of even more stringent procedure: jurisdiction of the Paris court, the possibility to conduct surveillance (monitoring), infiltration, wiretapping during the preliminary investigation, or recordings of computer data. The limitation periods for the offence ‘incitement to terrorism’ and ‘condoning acts of terrorism’ would thus be three years.
Article 9, part 1: emphasise the responsibility of technical intermediaries
Article 9 amends the liability regime of technical intermediaries. If ISPs and hosts are not subject to a general obligation to monitor the information which they transmit or store, they should actively contribute to the fight against certain offences.
They must, therefore, establish a warning system for users to use to flag expressions of glorification of crimes against humanity, incitement to hate speech (based on race, gender, sexual orientation or identity, disability) as well as child pornography, incitement to violence, including incitement to violence against women and violations of human dignity. The bill adds to this well-supplied laundry list the acts of incitement to the perpetration of acts of terrorism and their glorification.
What would be the outcomes of such flagging system? Informed by a user that a website or some form of content justifying terrorism exist, the host must notify the Central Office for the Fight against crime related to information technology and communication (L’office central de lutte contre la criminalité liée aux technologies de l’information et de la communication, OCLCTIC; yep, Frenchies are great fans of barbaric acronyms). Simultaneously, given that the host has been informed about such deeds, the host would be punishable by law if it does nothing to prevent access to child pornography, advocating for terrorism or glorifying terror acts. The reaction of technical intermediaries may and will plausibly vary in intensity but is also likely to bolster self-censorship.
Article 9, part 2: administrative blocking of websites which glorify terrorism
The very same Art. 9 introduces a new case: the possibility for an administration to order a website to be blocked for it advocating for or glorifying terrorism. In addition to child pornography, website editors may be ordered to remove terrorism-related (or deemed such) content from the website they are responsible for; such an order could be issued by an administrative authority.
In the case when the incriminated website’s editors do not remove the content or if no such editors have been identified, the administrative authority could order the ISP or the hosting company to introduce the changes. If those do not obey within the 24 hours following the reception of the order, the administrative authority could just order the website to be blocked. In other terms, a court order would not be required to demand the website take-down.
This framework gives the administrative authority the power to decide whether somewhat suspicious speech glorifies or not terrorism… but also whether a picture is or is not child pornography, since the procedure is the same for these (very different) types of content. The regularity of these steps would be closely monitored by an officer designated by the National Commission on Informatics and Freedoms (Commission nationale de l’informatique et des libertés, CNIL). If the Commission considers that given content item should not be removed or blocked, it would have the capacity to recommend to the administrative authority to maintain it, otherwise, the Commission could raise the case in a dedicated (administrative) court. This whole procedure would therefore occur without judge order unless a case of disagreement occurred.
The above is a rough translation from NEXTInpact’s Marc Rees piece (in French). (Comments on Twitter go with the hashtag #PJLterrorisme; live-tweet of the parliamentary debates goes with both hashtags #PJLterrorisme and #directAN. They are mainly in French but English comments appear occasionally, too. Also, see EFF’s short write-up)