On Sunday France elected a new president, Emmanuel Macron, who will be leading the country for the next five years. In this post we will address upcoming procedural and electoral steps and the potential impact a Macron presidency will have on digital rights issues including surveillance, encryption, international data transfers. We also identify 10 actions Macron can take to strengthen respect for human rights in France.
The electoral campaign was really tense and saw for the time the use of disruptive techniques such as the spreading of unverified information and troll armies. Macron and his team were also targeted by a hack on the last day of the campaign. French news media did not report on the content of the documents to respect the national law that limits reporting of unverified information and prevents candidates from speaking in public in the last 48 hours of the campaign. In addition, the remaining time was not adequate to analyse the large amount of unconfirmed information and the hack was a clear attempt to disrupt the elections.
Macron, leader of the En Marche! party, was elected with 65% of the votes. This is his first elected position, even though he is well known to the public, having served as Minister of Economy, Industry, and Digital Affairs under the outgoing president, Francois Hollande.
Macron’s first task will be to name a prime minister, and together appoint ministers and secretaries of state to form a new government. This is not likely to happen until mid-May or June when new members of the National Assembly, the lower chamber of the French Parliament, are elected. Traditionally, the prime minister represents the political party that wins the majority of seats in the National Assembly, since a PM’s support and power stems from the parliament. However, the En Marche! party is only eight months old and currently lacks candidates. This could mean that France will once again have a president and a prime minister from two different political parties. In practice, this means that the role of the president would be slightly limited and focussed on foreign policy, while the prime minister will have slightly more autonomy in leading France’s internal policies.
While it’s not clear yet what the political climate and composition of the French government will look like, we have analysed the statements and proposals Macron made during his campaign to shed light on how the presidency could impact digital rights.
Surveillance and privacy
Macron takes office at a time when France’s surveillance and intelligence arsenal has never been more expansive and ubiquitous. Over the past five years, the Hollande government has adopted a plethora of surveillance laws, from the Military Planning law, to the Intelligence law, to the International Surveillance law. Through these laws, legislators have sacrificed privacy for a false sense of security. Whether you are browsing the web or phoning your families or colleagues abroad, French authorities have the legal and technical capacity to surveil you, regardless of whether you are under suspicion for any crime. That is why several of these rights-harming laws are currently facing challenges at national or European courts.
What is worse, since November 2015 we have seen an expansion in the powers and discretion of the authorities under the infamous state of emergency laws. Initially deployed to respond to the immediate threat of terrorist attacks, the laws have been upheld ever since. The French digital rights group La Quadrature du Net has been tracking the gross abuses of powers that have taken place under these supposedly temporary measures, which now constitute a terrifying new “normal.”
During his presidential campaign, Macron expressed support for these measures, indicating that new “cyber intelligence” measures would reinforce these powers. It is not clear what Macron has in mind, but instead of expanding already vast and invasive surveillance powers, the president and the government should reform the laws to ensure that they are in line with the French Constitution, the EU Charter of Fundamental Rights, and international human rights standards.
Encryption and access to evidence
One of the most unfortunate statements Macron made during the campaign relates to encryption. Macron heavily criticised the “GAFAs” (Google, Apple, Facebook, Amazon, Microsoft, and others) for refusing to hand over decryption keys, before adding that “if they persist in their position, they will have to assume one day to have been accomplices of terrorist attacks.” This is of course not the first time that we’ve seen a politician attack encryption in the name of “security”. It is in this and every case an ill-conceived, misguided attack on the technologies that protect users’ privacy and digital security every day. Any deliberate weakening of encryption in our systems, networks, apps, or devices would make every one of us less safe. Meanwhile, there’s no evidence to show that purposely harming digital security would help stop terrorist attacks. A vulnerability can be exploited by anyone, including terrorists or unfriendly foreign governments.
Faced with opposition to the attack on encryption, Macron’s team slightly backed away from his initial statement, stating, “we wish to make it clear that the proposal does not consist in obtaining encryption keys used by the digital service providers, but of accessing the contents previously decrypted by themselves”. It is not clear, however, how this decryption process would take place. If the suggestion implies the government will explore hacking powers, Access Now advocates for a presumptive ban on the practice, with strictly defined limits and human rights safeguards for any exception. We look forward to working with the French government on this issue and to demonstrate that encryption is a security solution, not a security problem.
EU-US Privacy Shield, artificial intelligence, and platforms
Throughout his campaign, Macron addressed a variety of digital issues in general terms.
First, on the EU-US Privacy Shield, Macron would like to see the arrangement for data transfer renegotiated by the end of 2018 to “really guarantee the protection of personal data”. Access Now wholeheartedly supports implementing stronger safeguards. We have written extensively about the shortcomings of this framework and over the past two years have been pushing for reform of surveillance practices in both the EU and the US, as well as for improving privacy and data protection measures. While the EU Commission has discretion over negotiations for arrangements like Privacy Shield, it would be extremely positive to have France, and perhaps other EU states, pushing for such reform in the Council of the European Union.
Second, Macron suggested creating a “national strategy for Artificial Intelligence”, in particular to reflect on the impact of AI on the job market. Even though this is a broad proposal, it is positive to see that Macron recognises the relevance and potential long-term impact of AI on society. We agree with the need for a strategy to address how AI will affect the job market, in particular because there may be job losses in sectors where the use of new technology, such as AI and robots, could impact labor. To ensure that the strategy is beneficial for all French people, the strategy should also:
– address impacts on the fundamental rights to data protection and privacy and establish relevant safeguards,
– address the risks of institutionalised discrimination through AI that reproduces human biases,
– ensure the digital security of products and networks to prevent third party abuses, and
– recognise the necessity of developing reliable, fast, and secure networks all over the territory, so that everyone benefits from these technologies, not just those living in large cities.
Finally, Macron has made several proposals to boost investment in creating digital tools and platforms, in particular in the area of health and justice, as well as developing a “re-usable personal data database” to foster the growth of new platforms. We support innovation that may improve competition and increase users’ choice, so long as what is created not only fully protects but enhances users’ fundamental rights, including the rights to data protection and privacy. Currently, far too many digital services have business models that are based on harvesting data, and this negatively impacts our fundamental rights. It does not have to be this way. Products and services can and should be built to protect our privacy and secure our data, and we should support investments that accomplish just that.
Protecting human rights over next five years: our recommendations for Macron
Today, it might look like the future for Europe is brighter than it was the day after the Brexit referendum. But we have yet to address many of the challenges presented by Front National and the party’s supporters in France, as well as by leaders of other countries in the EU and across the globe.
No one should accept or tolerate policies based on, or supporting, racism, discrimination, and gross abuse of human rights. Access Now’s mission is to defend and to extend the digital rights of users at risk. Over the next five years, we will continue our work to ensure that the government and private actors respect human rights for everyone, regardless of gender, race, religion, or any other discriminatory distinctions.
Since Macron’s policy stance on digital rights issues has yet to be defined, we are advancing the following recommendations to guarantee and strengthen the protection of our human rights, whether online or off:
- Support the application of human rights online
- Lift the state of emergency
- Reform the surveillance and intelligence laws
- Protect the use of encryption
- Ban government hacking, with any exception conducted under strictly defined safeguards
- Do not shift the responsibility for enforcing human rights to private companies
- Push for the reform or repeal of Privacy Shield
- Ensure that an AI strategy includes strong human rights safeguards, measures for digital security, and protection against discrimination
- Develop a strategy for reliable, fast, and secure connectivity in the whole French territory and continue strengthening internet connectivity throughout the French speaking world, and work with governments to prevent intentional shutdowns and disruptions
- Promote investments into privacy and data protection-friendly digital products and services