Two British MPs, Tom Watson and David Davis, crossed the party divide and with campaigning organisation Liberty, won a legal challenge against the rushed, undemocratic Data Retention and Investigatory Powers Act (Dripa), passed in July 2014.
The High Court found that Dripa was unlawful because it did not adequately ensure that access to, and use of, communications data (though not its collection) was limited to what was necessary, appropriate and proportionate for preventing and detecting serious crime.
The decision has been welcomed for, finally, recognising in the UK what a number of other countries and a slew of independent examiners have demanded: proper judicial oversight of a “general retention regime on a potentially massive scale”. Where it falls down, as do many of those reports, is in accepting, implicitly or explicitly, the euphemistic re-characterisation of mass surveillance as “bulk interception” or “bulk collection”, thus endorsing an incursion into our private lives, papers, thoughts and communications that has no precedent in the law of the land.
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Disappointingly, however, the Dripa victory is likely short-lived. Immediately, the Home Office declared its disagreement with the High Court’s decision, pledging to appeal. And of course, the Conservative government has already made abundantly clear its intention to enact a single, comprehensive law – the so-called “snooper’s charter” – which many fear would unleash a tidal wave of surveillance at political and executive discretion.
This is where the other side of the channel comes in. Late on Thursday 23 July, in France’s highest constitutional body, the last safeguard of the rule of law fell, approving what is, by all measures, an intrusive, comprehensive, virtually-unchecked surveillance law.
A pipe-dream for two years, the French law gathered momentum in March this year in the wake of the Charlie Hebdo attack, and was put together in the French parliament under emergency procedures, drastically reducing discussion time and preventing any meaningful debate. The law was overwhelmingly approved by parliament in June and immediately referred to the constitutional council by nearly everyone who could do so, including François Hollande – the first time the president has deferred a law voted by parliament in the Fifth Republic.
France approves ‘Big Brother’ surveillance powers despite UN concern
The case also attracted an unheard of number of amicus briefs, many of which were made public, and most of which involved an impassioned cry about the unprecedented incursion on civil liberties that the law mandates.
And yet, despite this, the French council approved, with very few exceptions, a law that allows intelligence agencies to monitor phone calls and emails without prior judicial authorisation; to require internet service providers to install “black boxes” that filter all internet traffic, combing everyone’s metadata in order to identify deviant behaviours based on unknown parameters and provide access to the agencies; and to bug cars, homes and keyboards for images, sound and data.
All of this, of course, is discussed as being targeted at “suspected terrorists”. But all of it, equally and more significantly, touches us all; anyone and everyone who traverses the internet. The law’s goal is to improve the agencies’ tools for a large variety of vaguely stated purposes: terrorism, but also political surveillance, competitive intelligence for France’s major economic, industrial and scientific interests, the fight against organised crime, and goodness knows what else to come.”
