French Associations Trigger Criminal Investigation over PRISM

Under French law, individuals and associations are entitled to file a motion whereby they request that public prosecutors investigate a criminal matter (“plainte avec constitution de partie civile“).

Based on reports in American, German and French newspapers, the International Federation of Human Rights Leagues (Fédération Internationale des Ligues des Droits de l’Homme) and the French League for the Defence of Human Rights (Ligue Française pour la Défense des droits de l’Homme et du Citoyen) submitted such a motion to the Paris public prosecutor.

According to the arguments raised in the motion, the implementation and use of the PRISM system resulted in the following violations of the French criminal code:

• Fraudulent access and stay in all or part of an automated data processing system (sanctioned by article 323-1)

• Collection of personal data by fraudulent, disloyal, or illicit means (sanctioned by article 226-18)

• Voluntary violation of the intimacy of a person’s private life (sanctioned by article 226-1)

• Use and retention of recordings and documents obtained by means of a violation of a person’s private life (sanctioned by article 226-2), and

• Breach of the secrecy of electronic correspondence (sanctioned by article 226-15).

In response to the motion, the Paris Public Prosecutor has opened a “preliminary investigation” to ascertain the scope of the actions undertaken by the NSA and the FBI and the potential existence of the above-mentioned criminal offenses.

Although the motion does not designate a specific person or entity as the respondent for these criminal offenses (in French “plainte contre X“), its specific terms clearly point a finger at the NSA and FBI on the basis of the information disclosed publicly by Snowden and international newspapers, and statements by the NSA and the U.S. authorities. The motion also aims at including potential “accomplices” of the U.S. agencies, including private companies which might have assisted or granted access to their data to these agencies.

Accordingly, a number of American companies that provide Internet services, which are mentioned by name in the motion, could face investigation to ascertain their exact role in the PRISM system.

The investigation is now in the hands of the Paris judicial police.  While it can be anticipated that the investigation will take a long time, and that it is doubtful that it will result in a trial in the near future, the filing of such a complaint is another example of how concerns about governmental access to commercially held data can have implications for companies.

A copy of the motion is available (in French) at  http://www.ldh-france.org/IMG/pdf/plainteprism-finale.pdf.

Authored by Lionel de Souza