The United States and France Cross in the Night


On the eve of the Congressional debate to free American’s from the government spy network created with the excuse of protecting the homeland after 9-11, France takes a giant leap in the opposite direction.

France is poised to pass a comprehensive anti-terror law that actually makes the United States Patriot Act look like nothing more than Google cookies for the Home Shopping Network.  France’s new surveillance authority creates an Orwellian “big brother” more horrifying than the National Security Agency (NSA) in the United States.

In the United States, the reauthorization of the Patriot Act is not a slam-dunk given Edward Snowden’s revelations regarding the extent of the federal government’s data gathering activities. From legal challenges to media criticism, the USA Patriot Act faces an uncertain future. Critics have called for widespread changes to the law — particularly with regard to the NSA’s bulk collection of metadata — before it is reauthorized. A broad coalition of groups that includes everyone from the ACLU to the Guns Owners of America recently urged Congress to take action to reform the federal government’s surveillance activities ahead of the June 1 expiration of the Patriot Act. Critics of the law are fearful that it will be reauthorized for another five years without any substantial changes as the deadline looms.

“Policymakers on both sides of the aisle, along with members of the public, have consistently urged Congress to take action to restore accountability, transparency, and faith in intelligence agencies,” the letter reads. “Despite this, Congress has yet to enact meaningful reforms that would end bulk collection, preserve privacy, and protect human rights.”

Critics of the Patriot Act got a significant boost last week when the Second Circuit Court of Appeals decided USA v. Clapper. The court held that a provision in the statute authorizing the FBI to collect business records during a counterterrorism investigation does not authorize the bulk collection of domestic phone records. The Second Circuit is the first federal appeals court to weigh in on the legality of the program.

In France, the country’s new anti-terror law is moving quickly through the legislative process, despite criticism. The differing political stances reflect that anti-terror legislation is often reactionary. The Patriot Act’s mass surveillance programs were authorized in the wake of the September 11 attacks, but more than a decade later, have raised serious privacy and legal concerns.

Meanwhile, French lawmakers began fast-tracking the new law following the deadly Charlie Hebdo attacks in Paris that left 17 dead. According to the government, changes are needed to overhaul the country’s current wiretapping laws, which were written prior to the proliferation of e-mail, cell phones and other modern technology.

Under France’s new anti-terror measures, the country’s spy agencies would be able to tap cellphones, monitor emails, and force Internet service providers to allow intelligence officials to scan through their users’ communications. Like the Patriot Act, the French laws also provide for the bulk collection of meta data and allow the government to monitor communications between French citizens and those in other countries.

French Prime Minister Manuel Valls has assured French Citizens that the new authority will only be used to detect and prevent terrorism. However, much like in the United States, French privacy groups, civil rights advocates, news organizations, attorneys, and technology companies have all expressed criticism regarding the broad surveillance powers granted under the new law. Even the current editor-in-chief of Charlie Hebdo has come out against the French anti-terror legislation, telling the New York Times:

I think that opportunistic laws are always bad laws. I understand the spirit of this law, but I think we already have a lot of laws, and with these laws, if they’re used correctly, you can fight terrorism. So I understand the government, you have to do something. The easiest thing to do is to invoke a law. But maybe it’s a mistake, because if this law is not correct, if this law is not fair, it’s not the right answer.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. The United States and France Cross in the Night