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IV. Governance issues

E-Government & Privacy

Voting is open to those 18 years or older, but is not mandatory. Although the right to privacy is not enumerated in the French Constitution, the French Constitutional Court ruled in 1994 that it is implied.1 The French Electoral Code requires voters to cast their vote in total confidentiality.2 Reform of the French electoral legislation leaves the regulation of electronic elections to the High Council for French Expatriates (CSFE). In 1993, the CNIL adopted recommendations on electronic voting systems.3 The recommendations warn about the need to maintain rigorous measures for the separation of the voter's identity and his vote.4 During the last presidential elections, 1,44 million voters used electronic voting machines.5 The "association Ordinateurs de vote," an NGO dedicated to voter privacy, circulated a petition opposing electronic voting machines. As of June 2007, the petition had over 86.000 signatures.6

In September 2000, France allowed for the first time Internet voting on a five-year term referendum in the City of Brest.7 There are concerns regarding Internet voting and about voters being intimidated or denied privacy in casting their ballots.8 On 11 December 2002, 860 volunteers participated in an Internet voting project conducted by the EU in the city of Issy-les-Moulineaux.

In 2008, the CNIL conducted 20 audits of electronic voting systems carried out by public entities,9 and in 2009, the CNIL audited the use of such systems by public and private entities. In its annual activity report for 2009,10 the CNIL noted that these audits reveal a certain number of violations of the Data Protection Act.

Open government

As far as access to information is concerned, two laws in France provide for a right to access administrative documents held by public bodies.11 The Commission of Access to Administrative Documents (Commission d'accès aux documents administratifs, or CADA)12 is charged with enforcing the acts.13 It can mediate and issue recommendations but its decisions are not binding. According to the CADA, it received 4.900 inquiries in 2000 and 5.400 in 2004.14 The law was amended in April 2000 to clarify access to legal documents and also the identity of the civil servant processing the request.15

An ordinance was adopted in June 2005 to amend the 1978 law to implement the EU Directive on the re-use and commercial exploitation of public sector information (2003/98/EC).16 It also made a number of other changes to the law including setting out the structure and composition of the Commission, requiring bodies to appoint a responsible person, and allowing access in electronic form.17

Other Recent Factual Developments

There has been an increase of public awareness of privacy in the last few years in France. Privacy is now increasingly addressed in the media. The newspaper Le Canard enchaîné issued a special "dossier" on surveillance,18 while UFC Que Choisir?, an influential consumer group association, published a special release "Do not touch my privacy" in September 2009,19 The consumer group has also been active before the courts to obtain the cancellation of unconscionable privacy clauses in online stores and telecom providers' terms and conditions (See the "E-commerce" section). In July 2009, civil society groups opposed the implementation of intelligent advertising LCD screens in a Parisian subway station.20 These screens not only broadcast messages but can also count the number of people passing by and measure the time spent looking at the screen thanks to a face scanning sensor. Since these actions, the French data protection Authority, the CNIL, has issued a report considering that this technology must take into consideration the data protection rights of individuals as provided under the Data Protection Law: individuals must receive proper notice and the devices must be notified to the CNIL.21

"Correspondents for the protection of personal data", was created by the law of 6 August 2004 to ensure the protection of personal data within data controllers and become an intermediary with the CNIL, is growing: 6.869 data controllers have so far appointed a "Correspondant".22 The profession is also getting organized: a professional association of Correspondents, the French Association of Personal Data Correspondents (Association Française des Correspondants aux données Personnelles, or AFCDP) set up in June 2009 a conference on "the role and future of the data protection officials".

III. Non-Governmental Organisations Advocacy Work

Every year Privacy International and a growing number of affiliate human rights groups present the Big Brother Awards to government agencies, private companies and individuals who have excelled in the violation of an individual's privacy.23

The 2010 Big Brother Awards, held in May, declared the winners to be: Nicolas Sarkozy, President of the French Republic, winning for his entire work, the Ministers of Culture along with all French school headmasters for implementing the national database "base élèves" and for their use of biometrics at school, the Director of the Institute of National Statistics (INSEE), the music industry lobby, and the Thales Group for its entire work.24

At the 4 April 2009 Big Brother Awards ceremony, French Minister of the Interior, Michèle Alliot-Marie, received the lifetime menace award for her "immoderate taste for police files," for redefining the term video surveillance as "video-protection," her "incitements to denouncement," and "her talent to construct the 'internal enemy.'" Other winners included Paris Mayor, Bertrand Delanoë; Humabio, an EC-funded research project; the family benefits sector of the social security system; MEP and spokesman for Nicolas Sarkozy's party, Frédéric Lefebvre; the French minister of the Budget, Eric Woerth; and the French mutual insurance system. The Voltaire award was given to the coalition against the EDVIGE police file; the coalition of elementary and primary school directors against the central database of children ("base élèves"); the coalition against the use of biometrics in schools; and to two humanitarians who helped irregular migrants based in Calais to reach the UK.25 Other Big Brother Award ceremonies took place in 200726 and 2008.27

The Novlang Award was invented by the French organizers to honor the creative use of language to hide the real meaning, accurately described in George Orwell's novel 1984 as "newspeak". The Director of the Criminal Investigation Department received the 2006 Novlang prize for encouraging the expansion of the collection of genetic data on the entire population.

Three French NGOs, IRIS, GISTI (an association defending the rights of migrants) and LDH (Ligue des Droits de l'Homme, or the French Human Rights League) have filed a complaint in December 2009 before the Conseil d'Etat, to obtain the annulment of the "OSCAR" database. The three NGOs claim that the biometric nature of the data and the duration of its storage are arbitrary and disproportionate, given the purpose of the database, which is simply the management of the grant attribution in order to ensure that no one can claim it twice. It is disproportionate given the amount of the grant, which is minimal (300 EUR).28

International obligations and International cooperation

France ratified the Universal Declaration of Human Rights, which was proclaimed by the General Assembly on 10 December 10, 1948.29 On 4 November 1980, France ratified the International Covenant on Civil and Political Rights.30

France is a member of the Council of Europe (CoE) and has signed and ratified the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (ETS No. 108)31 and the European Convention for the Protection of Human Rights and Fundamental Freedoms.32 France has ratified on 10 January 2006 the Council of Europe Conventionon cybercrime and its additional protocol against racism and xenophobia. Both texts entered into force in the country on 23 May 2006.33 France is a member of the Organization for Economic Cooperation and Development (OECD) and has adopted the OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data.