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.
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
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".
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.
- 1. Décision 94-352 du Conseil Constitutionnel du 18 Janvier 1995, available at http://www.conseil-constitutionnel.fr/decision/1994/94352dc.htm.
- 2. European Commission, CyberVote Report Chapter 3: "The Election regulations today," 1 July 2001, available at http://www.eucybervote.org/Reports/KUL-WP2-D4V2-v1.0-02.htm.
- 3. Commission nationale de l'informatique et des libertés (CNIL), Vote électronique, 1 July 2003, available at http://www.cnil.fr/index.php?id=1009.
- 4. Id.
- 5. "Machines à voter ou machines à truquer?" Politis, 8 mars 2007, available at http://www.politis.fr/Machines-a-voter-ou-machines-a,527.html.
- 6. See http://www.ordinateurs-de-vote.org/petition/. Pierre Muller, founder of the organization, received le Prix Voltair, a positive Big Brother Award, for his work in this area. See http://bigbrotherawards.eu.org/Pierre-Muller-le-webmaster-de-Ordinateurs-de.html.
- 7. European Commission, Cybervote Report, An Innovative Cyber Voting System, supra.
- 8. "What is the Future of Electronic Voting in France, Recommendations," 26 September 2003 available at http://www.foruminternet.org/telechargement/documents/reco-evote-en-20030926.htm.
- 9. CNIL, Annual Activity Report 2008, available at: http://www.ladocumentationfrancaise.fr/rapports-publics/094000211/index.shtml.
- 10. CNIL, Annual Activity Report 2009, available at: http://www.cnil.fr/fileadmin/documents/La_CNIL/publications/CNIL-30erapport_2009.pdf.
- 11. Loi no 78-753 du 17 juillet 1978 sur la liberté d'accès au documents administratifs; Loi no 79-587 du juillet 1979 relative à la motivation des actes administratifs et à l'amélioration des relations entre l'administration et le public. Amended by Loi no 2000-321 du 12 avril 2000 relative aux droits des citoyens dans leurs relations avec les administrations (Journal officiel, 13 April 2000).
- 12. http://www.cada.fr.
- 13. Commission d'accès aux documents administratifs, 12e rapport d'activité 2002, July 2003, available at http://www.ladocumentationfrancaise.fr/brp/notices/034000645.shtml.
- 14. For more details, see David Banisar, Freedom of Information and Access to Government Records around the World,available athttp://obcan.ecn.cz/docs/FOI_survey.pdf .
- 15. Loi no 2000-321 du 12 avril 2000 relative aux droits des citoyens dans leurs relations avec les administrations (J.O. April 13, 2000).
- 16. Ordonnance no 2005-650 du 6 juin 2005 relative à la liberté d'accès aux documents administratifs et à la réutilisation des informations publiques, available at http://admi.net/jo/20050607/JUSX0500084R.html.
- 17. See freedomofinfo.org Country Survey à France, available at http://www.freedominfo.org/countries/france.htm#4.
- 18. "Je te vois. Filés ! Fichés ! Fliqués ! Comment nous sommes tous sous surveillance," Les dossiers du Canard Enchaîné, no 113, October 2009.
- 19. UFC Que Choisir, Que Choisir spécial: "Touche pas à ma vie privée", no 81, September 2009.
- 20. RAP (Résistance à l'agression publicitaire), "Ecrans de pub espions du métro : les associations contre-attaquent !" http://www.antipub.org/spip.php?article48. The civil society groups were: Résistance à l'agression publicitaire, Souriez vous êtes filmés, Big Brother Awards, Robin des Toits, and Le Publiphobe.
- 21. CNIL, "Panneaux publicitaires de mesure d'audience : la CNIL est compétente et contrôle !",
CNIL, "Dispositifs d'analyse du comportement des consommateurs : souriez, vous êtes comptés !",
- 22. CNIL, "Correspondants" http://www.cnil.fr/la-cnil/nos-relais/correspondants/.
- 23. Big Brother Award International, available at http://www.bigbrotherawards.org/.
- 24. Big Brother Awards France http://bigbrotherawards.eu.org/.
- 25. EDRI-gram, Number 7.7, 8 April 2009, "Big Brother Awards France 2009,"available at http://www.edri.org/edri-gram/number7.7/bba-france-2009; see Big Brother Awards 2009, available at http://bigbrotherawards.eu.org/-Big-Brother-Awards-2008-.html.
- 26. The 2007 Big Brother Awards, held in January, declared the winners to be the sub-prefect in charge of security in the Seine St. Denis neighborhood, where the Charles de Gaulle de Roissy airport is located since he, without cause or process, denied thousands of individuals the chance of employment because he suspected that they had terrorist associations. Sony-BMG received its award for having embedded "rootkit" spyware into its audio CDs. The Mayor of Ploérmel was given his award for his enthusiastic use of video surveillance (50 cameras in a village of 9000 people). The Minister of Justice earned the Life Menace Award for his work on the sexual offender GPS tracking bracelet. See BBA France press release, 20 January 2007, available at http://bigbrotherawards.eu.org/Palmares-2006-des-Big-Brother-Awards-France.html.
- 27. On 21 March 2008, Paris was host to the French Big Brother Award for the year 2007. President Nicolas Sarkozy was excluded from the competition this year, because of his "genetic predisposition" for violating privacy and civil liberties. The 2007 jury had granted the State Award to the Constitutional Council for validating a safety imprisonment law that allows for the imprisonment of people considered dangerous by experts and not judges. The Corporate Award was granted to Taser France for its drone prototype "Quadri-France," surveillance equipment used mainly in rural areas. The Local Menace Award was granted to Claude Journos, president of Lyon II University for using students as a surveillance technology test subjects. The Orwell Newspeak Award was granted to the TV show Envoyé Spécial of France 2 for an unbalanced report about foreigners expulsions procedures, and finally, Google Inc. received the Lifetime Menace Award à "who has no genetic excuses for their Big Brother-like behaviors.'" EDRI-gram, Number 6.6, March 26. 2008, "Big Brother Awards à France 2007," available at http://www.edri.org/edrigram/number6.15/50000-signatures-edvige.
- 28. GISTI, IRIS & LDH, press release: Fichage biométrique des Roms. L'annulation du fichier Oscar par le Conseil d'état devient urgente" (Biometric Filing of Roma: the Conseil d'Etat Annulment of OSCAR File Becomes Urgent), 31 August 2010 ,available in French at http://www.iris.sgdg.org/info-debat/comm-oscar0810.html. See also Meryem Marzouki, "France: Imminent 'Humanitarian Fingerprinting' of Roma with OSCAR", EDRi-gram, no. 8.17, 8 September 2010, http://www.edri.org/edrigram/number8.17/fingerprinting-roma-france-oscar.
- 29. The Declaration was ratified through a proclamation by the General Assembly on 10 December 1948 with a count of 48 votes to none with only 8 abstentions. See Universal Declaration of Human Rights, 10 December 1948, available at http://www.un.org/Overview/rights.html.
- 30. International Covenant on Civil and Political Rights, 16 December 1966, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm .
- 31. Signed 28 January 1981; ratified 24 March 1983; entered into effect 1 October 1985.
- 32. Signed 11 November 1950; ratified 3 May 1974; entered into effect 3 May 1974.
- 33. Council of Europe. Convention on Cybercrime, CETS no 185 available at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=1&CL=ENG&NT=185. décret no 2006-580 du 23 mai 2006 portant publication de la Convention sur la cybercriminalité, faite à Budapest le 23 novembre 2001, available at http://www.legifrance.gouv.fr/WAspad/UnTexteDeJorf?numjo=MAEJ0630050D.