Feedback of the workshop "Intelligence Oversight : Is Human Rights-Preserving Surveillance Possible?"

on the January 15, 2018

The Grenoble Alpes Data Institute organized a workshop on Intelligence Oversight the 14th November 2017. More than 100 persons attended to the workshop that took place at Inria, Montbonnot.

Several journalists were present in this workshop, which is now mentioned in national media. Below, all the articles published about the event:
 


During this workshop Mr. F. Delon, President of the National Oversight Commission for Intelligence-Gathering Techniques, announced that automated monitoring may be imposed on the networks of operators and persons for the sole purpose of preventing terrorism.

Below, the video and the abstract of each intervention.

 

Opening of the workshop: Objectives of the day

Patrick GROS (Directeur Inria Grenoble), Théodore CHRISTAKIS (Professeur Université Grenoble Alpes / Institut Universitaire de France) and Claude CASTELLUCCIA (Chercheur Inria).

Today, mass surveillance is made possible by technological evolutions. However, although States face significant  threats, there is a need for a proportionality control between national security interests and respect of human rights, especially the right to privacy.



Keynote: Francis Delon

Francis Delon, Président de la Commission nationale de contrôle des techniques de renseignement

Francis Delon discusses the implementation of the French Intelligence Act (“loi relative au renseignement”) of 24 July 2015 by comparing it to  the former Intelligence oversight framework. He then presents the developments that have occurred since that date regarding the external control of legality exercised by the CNCTR (National Commission for the Control of Intelligence Techniques). In short, has respect for the right to privacy been reinforced? Is the CNCTR’s control effective? Can we go further?



Workshop 1: Judicial review

Oversight in front of the European Court of Human Rights

Théodore Christakis (Professeur Université Grenoble Alpes / Institut Universitaire de France)

Theodore Christakis presents the case law of the European Court of Human Rights (ECtHR) regarding States surveillance, and in particular  that relating to the right to  privacy. At first, he analyses the methodology and requirements on behalf of the ECtHR: admissibility, State interference, legality, legitimate purpose, necessity in a democratic society. Then, he presents his transversal observations on  the judgments of the ECtHR: geography of the ECtHR judgments, judicial activism, proceduralisation of the obligations, State practice …



The limits set by the Court of Justice of the European Union

Fabien Terpan (IEP Grenoble)

Fabien Terpan, Senior lecturer at the Grenoble IEP provides a particularly clear and relevant overview of the scope of the protection of the European Union's fundamental rights in terms of data protection and privacy.. He explains that on the one hand right to privacy and to protection of data have been incorporated into the law of treaties with the entry into force of the Lisbon treaty and , on the other hand,  that the Court of Justice of the European Union has refined its reasoning over the last few years in order to improve its protection of the above-mentioned rights. In particular, this requires States to adopt a legislation that protects the privacy of individuals, even though a limited number of derogations remains possible. He also recalls that civil society and in particular the media, by making the rulings of the Court public, contribute to improving the effectiveness of the judicial system.



Litigation against the French laws relating to oversight

Nicolas Hervieu (Collaborateur du cabinet Spinosi & Sureau, Avocats aux Conseils)

In his presentation Nicolas Hervieu describes the obstacles that a lawyer has to deal with in order to  file an application before the European Court of Human Rights. Indeed, in the course of his work he has had the opportunity to participate in the filing an application before the Strasbourg Court, in order for the latter to  evaluate whether the French surveillance law (“loi relative au renseignement”) complies  with the European Convention on Human Rights. The surveillance law (“loi relative au renseignement”) had initially been the subject of proceedings before the French Constitutional Council which had eventually declared it in compliance  with the Constitution. In spite of this, the question that arises is whether France will be condemned for the adoption of this law which raises a number of problems with respect to the right toprivacy, the right to a fair trial and the right to an effective remedy, which are three rights are protected by the European Convention on Human rights. In particular, this law does not contain enough guarantees concerning two particularly protected professionals, namely lawyers and journalists.



Workshop 1: Judicial Review: Debate with the public

Moderated by Karine Bannelier (Université Grenoble Alpes)

After the different presentations of the first panel, the audience reacts. We learn, in particular, that the French government began using its first “black box” a month ago. Several questions are asked: What are we talking about when we refer to “security”? Which algorithm is used to anonymise the data collected by the “black boxes"? Who is in charge of the anonymization of the black boxes data? Can we really talk of anonymization? How can we break the dichotomy between connection data and content data in order to better protect privacy? What is the future of applications before the ECtHR? What is the effectiveness of ECtHR rulings?



Workshop 2: Other forms of control

Executive control, parliamentary control or control by independent experts?

Jean-Marie Delarue (Conseiller d’Etat honoraire, ancien président de la commission nationale de contrôle des interceptions de sécurité)

Jean-Marie Delarue wonders what could the best institutional control of surveillance be. First, he wonders what the field of application of surveillance control is: when does information come into the hands of the judicial police? How can we articulate this control with the classic  control of the administrative judge? He is also interested in  a priori and a posteriori control, highlighting in particular that the technological and legislative evolution made this control difficult. Secondly, he presents an overview of the conditions which make the control better: independence, technological methods, ethics, transparency…   On the basis of these conditions and by reviewing different national experiences which implement the controls of the executive power, the national Parliament, the specialized or not judge, of an independent administrative authority, the effectiveness of the control makes it lean towards the latter solution.



What control for international surveillance and data sharing between intelligence services?

Tomaso Falchetta (Privacy International)

Tomaso Falchetta gives us an overview of data sharing agreements between intelligence services. He begins by defining what he means by the sharing of data between intelligence services, and by presenting its international aspects:   this situation creates challenges about the applicable law and transparency. He also presents four issues about intelligence sharing: interference with the right to privacy, secrecy, safeguards to guarantee fundamental rights and direct access to those rights.



The surveillance and its control in the United States: State of play

Céline Castets Renard (Université Toulouse 1 Capitole/ IUF, vis. scholar, Fordham Law School)

Céline Castets-Renard presents the U.S. legislation concerning the control of internal and external surveillance. Regarding internal surveillance, she analyzes the constitutional and judicial guarantees, including the Fourth Amendment, by studying the different jurisprudence relating to the interference with intelligence services. She also discusses the notions of “reasonable expectation of privacy” and “third party doctrine” and the impact of private technology companies on privacy. On external monitoring, she looks back at FISA’s weaknesses  in view of  Edward Snowden’s revelations about the PRISM program and the upcoming vote in Congress on section 702 by the end of 2017.



The role of civil society

Lori Roussey (Quadrature du Net, CERI)

Lori Roussey presents the different roles that civil society embodies concerning surveillance oversight. Firstly, civil society today takes on the role of informant by analyzing, documenting, making accessible and translating State arguments. Secondly, civil society shares with other actors the role of coordinator of the various European initiatives. Finally, civil society takes on an important role in litigation concerning legislative measures threatening human rights in the digital context.  The fact remains that to date, French civil society must be  substantially reinforced and diversified.

There is no video available for this presentation.

Workshop 2: Other forms of control: Debate with the public

Moderated by Marie-Laure Basilien-Gainche (Université Lyon 3/Institut Universitaire de France)

After the different presentations of the second panel, the audience intervenes. What can be the future of human rights in light of the raising security concerns? Would there not be an interest in  diversifying our litigation resources by connecting them not only to privacy but also to freedom of speech? What about the status of whistleblowers? How will the French parliamentary control be operated on intelligence practice? How can  data collected from abroad be regulated?



Workshop 3: Logic and challenges

The sidelining of democracy in the face of the terrorist threat

Jacques Follorou (Le Monde)

Jacques Follorou discusses the State’s security response to terrorism, which has led to the sidelining of democracy. He gives the example of the emergence of massive data collection that started from the Sarkozy presidency: in order for the notions of private and public space to be redefined and to be the subject of legislation, seven years and a terrorist attack within French territory had to occur. He calls antiterrorism laws the « Trojan horse » permitting entrance into a Surveilling State, highlighting that democracy has been complicit to its exclusion through the concept of experimentation. Finally, he examines the case of the radio exception, which was only contested when the Constitutional Council analyzed it. He concludes by stating the weakening of democracy, caused by fear, emotion, lack of debate, and institutional insecurity. 



The logic of the intelligence community

Olivier Chopin (EHESS)

Olivier Chopin describes the logic of the intelligence community. First, he refers to the special character of intelligence techniques and presents the three intelligence movements: centralization, standardizatio and problematization. Then, he defines the concept of community as the idea of gathering intelligence in a coherent whole and making it controllable,then describes the French intelligence community. He then raises the question of the management of such a complex community by evoking the American theory of hierarchy and leadership and by describing the French situation. He concludes by enumerating the biggest challenges for the French intelligence: anticipation, the definition of strategic information and the shift from “raison d’Etat” to State prerogatives.



Surveillance and surveillance monitoring: technical challenges

Claude Castelluccia (Inria)

Claude Castelluccia begins by presenting his work on the relation between security and fundamental rights. For example, he aims to analyse the risks of the TES system (Secure Electronic Securities) and its alternatives. He then explains the difference between eavesdropping (data) and surveillance (metadata), and the challenges of metadata in terms of privacy. He describes the different  digital surveillance systems and recalls that anonymous surveillance is an oxymoron. He then focuses on measuring and correcting the performance of filtering systems and presents the paradox of false positives. He concludes by listing the  difficulties in controlling surveillance: the variety and complexity of surveillance systems, the omnipresence of surveillance (“liquid surveillance”) and the convenience of access to  surveillance 



Workshop 3: Logic and challenges: Debate with the public

Moderated by Daniel Le Metayer (Inria)

Some clarifications are given about the surveillance laws of 1991 and 2015, particularly with respect to the consideration of  mobile phone surveillance and the legislative logic that  is based on surveillance techniques instead of invasions into privacy. After theses clarifications and the different presentations of the second panel, the audience intervenes. Who is criminalized for  surveillance techniques? How can we protect metadata? What part do activists play in research? In view of the complexity of surveillance, can we have a useful intelligence service? What about the society asking for more security? Is fear caused by “opinion makers”? What about private intelligence?



Round table: surveillance and journalism


With Pierre Alonso (Libération), Jacques Follorou (Le Monde), Amaelle Guiton (Libération), Elsa Trujillo (Le Figaro) and Martin Untersinger (Le Monde)
Moderated by Serge Slama (Université Grenoble Alpes) and Théodore Christakis (Professeur Université Grenoble Alpes / Institut Universitaire de France)

Five journalistes from Le Monde, Libération and Figaro take part in a round table on the issue of the relationship between surveillance and journalism. They share their experience: have they ever felt  watched? What do they think of the Camille Poloni case? Are the guarantees provided for by the law for the protection of journalists sufficient when they carry out investigations regarding sovereign matters? Do they take special protections to protect their sources, especially through cryptography? Is there a before and an after Snowden? What do they think about the incentive to encrypt and the prohibition of back doors recommended in the e-privacy policy proposal? What is the role of investigative journalists in the revelation of mass surveillance systems? Does the State have a legitimacy to monitor the population? Do journalist have a legitimacy to be more protected than the rest of the population? What is the role of whistleblowers in revealing intelligence? Do they plan to implement the encryption systems developed by the  Freedom of the Press Foundation in order to protect whistleblowers? Why is the relationship between researchers and journalists not more developed? Do journalists meet more difficulties to find sources after the Snowden revelations? Is it easier to be a journalist than to be a source?



Workshop 5: Oversight in perspective

The control of the intelligence services

Sebastien Le Gal (Université Grenoble Alpes)

In his presentation, Sebastien le Gal, Professor in  History of the Law, reviews the evolution of surveillance control in France. Indeed, according to him,the French Surveillance law of 2015 (“loi relative au renseignement”) can be considered as a real turning point in the  French policy on surveillance control.  He notes the failure of previous attempts to  control,  since the end of the 19th century,  undermined by the invocation of the “raison d’Etat” or the “defence secrecy”. To serve his purpose he draws an overviewof the various attempts of judicial and parliamentary controls that have taken shape as early as the nineteenth century.



Mass surveillance before international organizations: the case of the European Union Agency for Fundamental Rights

Antonio Gutiérrez (FRA)

Antonio Gutiérrez begins by presenting the European Union Agency for Fundamental Rights  (FRA). In 2014, following the Snowden revelations, the Agency will be asked by the European Parliament to write a report about citizen surveillance that was published in October 2017 and presented in this video. He explains the different legislative reactions concerning the control of surveillance following the revelations of the PRISM program, the different modalities of supervision of the intelligence services. He concludes by stating the Fundamental Rights Agency’s recommendations: independence, technical competence, transparency, complementarity, particular protection of certain categories of population, and international cooperation between services.



Whistleblowers and intelligence control

Serge Slama (Université Grenoble Alpes)

Serge Slama presents the existence and the effectiveness of the status of whistleblower in France. He begins by providing a definition of the concept of “whistleblower” in order to denounce the weaknesses of the definitions proposed by the “Sapin 2” law. Indeed, the status of whistleblower is restricted as it concerns  the quality of the person, the legislative dispositions that are violated by the revelation, the rights that can be the subject of an alert, the procedure to be respected, and the powers of the judicial judge: it is unlikely that the whistleblower will believe that he is protected following his revelations.



Workshop 5: Control in perspective: Debate with the public

Moderated by François Viangalli (Université Grenoble Alpes)

After the presentations, the public intervenes. Should we decompartmentalize the difference between the simple public servant who has to report a crime or an offence to the Public Prosecutor of the intelligence agent who is not supervised by the judicial judge? What are the respective roles of the whistleblower and the journalist? Is the whistleblower endangered by the provisions of the “Sapin 2” law? What about the issue of evidence in surveillance matters? Is there any case law concerning  whistleblowers who have already used the procedure of the “Sapin 2” law?



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These abstracts have been prepared by the PhD students of the CESICE, Université Grenoble Alpes: Katia BOUSLIMANI, Alexandre LODIE and Katerina PITSOLI.
Published on May 23, 2018