From Deep State Illegality to Law of the Land: The Case of Internet Surveillance in France

Résumé En

Taking France as a case-study, this working paper reflects on the ongoing legalization strategies pursued by liberal states as they seek to secure the Internet surveillance programs operated by their domestic and foreign intelligence agencies. Following the path to legalization prior and after the Snowden disclosures of 2013, the paper shows how these leaks helped mobilize contentious groups against the extrajudicial surveillance of Internet communications, a policy area which had hitherto been overlooked by French human rights advocacy. It also points to the dilemma that post-Snowden contention created for governments. On the one hand, the disclosures helped document the growing gap between the existing legal framework and actual surveillance practices, exposing them to litigation and thereby reinforcing the rationale for legalization. But on the other hand, they made such a legislative reform politically risky and unpredictable. In France, policymakers navigated these constraints through a cautious mix of distinction strategies, silence, and securitization. After the Paris attacks of January 2015 and a hasty discussion in Parliament, they eventually passed the 2015 Intelligence Act –the most extensive piece of legislation ever adopted in France to regulate secret state surveillance. The paper concludes by pointing to the paradoxical effect of post-Snowden contention: French law now provides for clear rules authorizing large-scale surveillance, to a degree of detail that was hard to imagine just a few years ago.