2015-04-16

Overview of FDN & La Quadrature’s challenge against Website Blocking

This month, French Data Network and La Quadrature du Net filed a lawsuit to the Conseil d’État, one of the supreme courts, against the French government on website blocking.

This is part 2 of our series “French Data Network versus the French Government”.

Who?

French Data Network, the Fédération FDN and La Quadrature du Net. This is the same team working against Data Retention.

How?

Right after the Charlie Hebdo shootings, the French government issued a décret enabling a section of the police to request that Internet access providers block access to a secret list of websites.

This décret is an application of two laws:

the 2011 LOPPSI law which had a provision about website blocking in order to fight against child pornography
the 2014 “Cazeneuve law” against terrorism which created a new article in the French penal code about “incitement to terrorism” or terrorism apology.

For us, the judicial guarantees of our freedoms of expression and of communication are at stake!

What?

There are several arguments, but in a nutshell:

the décret is everything but clear in limiting the scope of what the police can put on that secret list of websites that Internet access providers have to block; it could be anything from a whole domain name (regardless of the protocols: email, web, whatever) to a specific URL.

This is problematic for two reason: 1) this is an example of the autonomy left to the police to make arbitrary decisions, without judicial oversight and 2) depending on what the police asks, the consequences can be very, very different. For instance: domain name blocking intercepts too much and has too much collateral censorship; while URL blocking requires very intrusive analysis of network connections, i.e. what people are doing online.
the décret specifies that ISP must redirect intercepted connections to blocked addresses to a server of the Government. This is a technical equivalent of denunciation and puts a risk on all of us: you never know whether you are going to access a blocked website until after you end up on the Government’s server. So you better not try to inform yourself on sensitive issues… The government has your back (and is behind your back!)

But really, the most troubling thing is in the law: all of these powers are exempt of effective judicial oversight.

Indeed, it’s entirely possible that the police can order website blocking without the editor or the hosting provider even aware of this. The decision is secret, so it’s very difficult to have an efficient course of action against it. More troubling, this can have direct consequences on everyone’s privacy or freedom to access information which hasn’t been judged unlawful information.

So there’s clearly not enough judicial gurantee checking on the power of the State.

Fortunately, I think we have good case law from the European Court of Human Rights already against France: Association Ekin v. France (2001). Indeed, especially when it comes to freedom of expression, it is important that the law provides for “control over the scope of bans and effective judicial review to prevent any abuse of power”, which, I think in the case of the 2011 and 2014 laws is entirely missing.

If you’re interested, you can read the whole thing (in French).

What next?

I’ll keep you posted on the blog about the procedure. It should take at minimum a year, if nothing unexpected happens (but it can be significantly longer depending on prejudicial and accessory procedures…).