Aegis Paper Series
The Encryption Debate in Europe
Daniel Severson is a Harvard Law School and Harvard Kennedy School graduate. He served as editor-in-chief of the Harvard International Law Journal and writes for Lawfare. Daniel was a Harvard University Presidential Public Service Fellow at the Defense Department, a Council of American Ambassadors Fellow at the State Department, and a Fulbright Scholar in Taiwan. He plays the French horn.
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As the U.S. Congress considers encryption legislation, the French Parliament continues to move forward with enhanced penalties for companies that fail to aid sufficiently the authorities in gaining access to electronic data during a criminal investigation.
On March 30, President François Hollande announced that he was abandoning a constitutional amendment that would have enshrined state of emergency powers and stripped French citizenship from convicted terrorists.
Just days after the November 13 attacks in Paris, President Hollande promised to amend the constitution in a speech to Congress assembled at Versailles. The speech met with applause from across the political spectrum, but political divisions have since dealt a blow to Hollande’s project.
The United Kingdom is considering its largest overhaul of laws governing electronic surveillance in 15 years. On March 1, the U.K. Home Secretary, Theresa May, introduced the Investigatory Powers Bill, a detailed and technical 245-page bill that proposes to update and consolidate the United Kingdom’s surveillance authorities for the intelligence and security services, as well as law enforcement.
Legislators in France are watching closely the fight between Apple and the FBI, but, in the meantime, the French National Assembly has amended a pending counterterrorism bill to impose heavy penalties on technology companies that fail to cooperate in decrypting communications relating to terrorism investigations.
On Friday, February 19, the Constitutional Council upheld two articles of the state-of-emergency law—meeting bans and warrantless searches—as constitutional, but struck down a provision allowing the police to copy data when conducting such searches. Separately, the French Parliament extended the state of emergency through the end of May.
The National Assembly voted this week to adopt an amendment that would enshrine the state of emergency in the French Constitution and extend denaturalization to dual-nationals born in France who are convicted of terrorism.
The vote in the National Assembly was 317 for, 199 against, with 55 abstentions. The Senate is expected to take up the bill in mid-March—for constitutional reforms, a four-week delay is required between reviews by each house.