To author of the “Patriot Act,” new French law surveillance stricter than the US Link
(Translated from the Portuguese, RFI Brasil, Nov. 18, 2015) Following the attack on the newspaper Charlie Hebdo in January 2015, there were few voices in French policy to ask for a ‘Patriot Act à la française’, a new legislation to address terrorism inspired by the American law. The controversial Patriot Act enacted by George Bush after Sept. 11, 2001 is criticized for having increased the permissions for the government to monitor suspects through surveillance techniques such as wiretapping. Law professor at Syracuse University in New York and INSCT Faculty Member Nathan A. Sales was part of the team that wrote the law. To this jurist, who at the time worked at the US Department of Justice, the French do not need a “Patriot Act” to fight terrorism because their current surveillance law, passed last summer, gives even more power to the French government than US laws provide Washington, DC.
“French law is more permissive than the American. It provides stronger surveillance authorities of the United States.” Link
RFI Brazil – Is the Patriot Act still useful in fighting terrorism?
Nathan A. Sales – It’s working well, but no anti-terrorist surveillance will be perfect. Technological change is putting a lot of pressure on surveillance laws here in the United States but also in France. One of the challenges that we started to face last year is encryption. There is now a large number of new technologies that did not exist years ago, applications like WhatsApp and other technologies that terrorists such Islamic State and other groups increasingly use to protect communication. This means that even if you have a law like the Patriot Act or a new French surveillance law that allow researchers to intercept the communications of suspects, these laws cannot do much if you cannot decipher the information. This type of high-quality encryption used to be a unique, sophisticated technology for governments such as the US, Britain, and France. It is now available to anyone who has an iPhone.
What was the main concern when the Patriot Act was written?
Nathan A. Sales – We had two key objectives. One of the things that the Patriot Act did was allow counterterrorism investigators to use the same techniques that ordinary police have been using for decades; for example, use mobile wiretapping. Another thing that the Patriot Act tried to do was to create a judicial approval system that would allow the anti-terrorism investigators to conduct wiretaps, but subject to strict authorization of a judge. You needed permission of the court, for example, to watch Khalid Sheikh Mohammed [the terrorist imprisoned in Guantanamo, accused of being an “architect of 9/11”].
How do you see the new French law surveillance law passed in June?
Nathan A. Sales – French law is more permissive than American. It provides stronger surveillance authorities than the United States. There is no need for court approval, and there are a greater number of case types that you can monitor not only terrorism and espionage but also for industrial and economic research. In terms of legal authorities, the French government has more tools than the American.
So that French law should be enough?
Nathan A. Sales – Hard to say. The attack in Paris took place despite this law. We need to know why. The attack was a very sophisticated operation, involving a lot of money, training, travel, and communication. It will be very important for researchers to figure out how the attack could happen without the French authorities detecting it. [At a time when France is considering new surveillance laws, it’s important to understand whether there are any gaps in the current laws that contributed to the attacks.]*
The French generally reject the idea of making a “French Patriot Act” because they are afraid of losing civil liberties. Does this make sense?
Nathan A. Sales – France already has surveillance laws that go beyond the US Patriot Act.
“The most important part of the Patriot Act is the judicial approval. Generally, if the NSA wants to intercept a communication in the US, it must go to the court responsible for surveillance and intelligence and demonstrate probable cause that the target is a spy or terrorist.” Link
Does the Patriot Act not affect the individual rights of citizens?
Nathan A. Sales – The most important part of the US Patriot Act is the judicial approval. Generally, if the NSA wants to intercept a communication in the US, it must go to the court responsible for surveillance and intelligence and demonstrate probable cause that the target is a spy or terrorist. This is very similar to the laws that apply to ordinary criminal investigation. The basic concept is: you need to ask a judge before acting. And this is an important way to avoid abuse or unnecessary surveillance.
How would you advise President François Hollande to act from now on?
Nathan A. Sales – There is no single answer or a silver bullet to solve the problem. In part action will have to be an international military coalition led by France, and I would like to see the United States have a greater role. Our president said Friday (Nov. 13, 2015), throughout the day, that Islamic State was contained. This was a surprise to the people of Paris. I would advise the French president and others to put together a military coalition, including Sunni Arab states such as Saudi Arabia, and others like Georgia and Egypt, which are in the region and have a military force that, combined with NATO, can defeat this threat.
Is the fight against ISIS different from that fight al-Qaeda?
Nathan A. Sales – There are some disturbing similarities between the two. Al-Qaeda in 2000 looked a lot like the ISIS in 2015. The two have territories where they are safe, but the territory controlled by ISIS is much larger than that of Al-Qaeda in Afghanistan. ISIS held large-scale attacks as did al-Qaida in the 90s, such as attacks on US embassies in Africa. My concern is that ISIS is now just warming up. The catastrophic attack on Paris, the downing of the Russian plane, and the attack in Lebanon could be the prelude to something bigger, something with a Sept. 11, 2001 scale.
To see the original article, click here.
* English translation of this sentence clarified by Professor Sales on Nov. 18, 2015.