by La Quadrature du Net, France
On 3 September 2015, the non-profit Internet Service Providers (ISPs) French Data Network (FDN) and the FDN Federation (FFDN) as well as a digital rights advocacy group La Quadrature du Net announced the introduction of two legal challenges before the French Council of State against the Internet surveillance activities of French foreign intelligence services, Directorate-General for External Security (DGSE).

As the French government plans the introduction of a new bill on international surveillance, these challenges underline the need for a thorough oversight of surveillance measures.

On 31 August, with the assistance of law firm Spinosi-Sureau, La Quadrature du Net, FDN and FFDN brought legal action seeking a summary judgement and suspension against the unpublished decree regulating measures of the surveillance of international communications by the DGSE, which was secretly adopted in 2008. Even though this decree, revealed by the magazine l’Obs in July 2015 remains secret, its existence has not been refuted by the French government. What is known, however, is that is its designed to authorise the massive tapping by the French foreign intelligence services of Internet communications going to or coming from French territory.

The legal challenge focuses on two main points:

• The fact that this decree is secret, automatically prevents both citizens and Members of Parliament from knowing about it, which contradicts the jurisprudence of the European Court of Human Rights
• The fact that the French Constitutional Council’s censorship of the provision on international surveillance (article 854-1 of the Interior Security Code voted in the Surveillance Law) reinforces the illegal nature of the decree, since it made clear that the legislative basis for such a decree should bring real and detailed safeguards  The implementing decree adopted in April 2008 had no legislative basis and its unconstitutionality is confirmed by the French Constitutional Council’s decision.

“Through these legal challenges, our organisations are denouncing the massive collection of Internet traffic data by French intelligence agencies, conducted outside of any legal framework or effective oversight mechanism. Just as the government announces a new bill on “international surveillance”, this trial is a reminder that no one should be above the rule of law. The upcoming bill will have to break away from the logic of mass surveillance and provide a rigorous oversight that is compliant with international and European human rights standards, while ensuring transparency without which there cannot be any democratic control of the state,” said Felix Treguer, co-founder of La Quadrature du Net.

On 31 August, with the assistance of law firm Spinosi-Sureau, La Quadrature du Net, FDN and FFDN brought legal action.

Three French NGOs challenge French international surveillance (03.09.2015) https://www.laquadrature.net/en/Three-French-NGOs-are-challenging-French-International-Surveillance

Exclusive. How France listens (also) to the world (only in French, 01.09.2015) http://tempsreel.nouvelobs.com/societe/20150625.OBS1569/exclusif-comment-la-france-ecoute-aussi-le-monde.html

Brief for summary and suspensive judgment (only in French) https://www.laquadrature.net/files/Recours_d%C3%A9cret_secret_2008_R%C3%A9f%C3%A9r%C3%A9_suspension.pdf

Brief for judgment as a matter of law (only in French) https://www.laquadrature.net/files/Recours_d%C3%A9cret_secret_2008_Requ%C3%AAte_sommaire.pdf