This paper (update: now published by Media and Communication in a special issue on “Post-Snowden Internet Policy” – pdf) aims to contribute to cross-country comparisons of the consequences of post-Snowden contention for the techno-legal apparatus of modern forms of secret state surveillance.
Taking France as a case-study, it reflects on the ongoing legalization strategies pursued by liberal states as they seek to secure the Internet surveillance programs operated by their domestic and foreign intelligence agencies.
Following the path to legalization prior and after the Snowden disclosures of 2013, the paper shows how these leaks helped mobilize contentious groups against the extra-judicial surveillance of Internet communications, a policy area which had hitherto been overlooked by French human rights advocacy.
It also points to the dilemma that post-Snowden contention created for governments. On the one hand, the disclosures helped document the growing gap between the existing legal framework and actual surveillance practices, exposing them to litigation and thereby reinforcing the rationale for legalization. But on the other hand, they made such a legislative reform politically risky and unpredictable.
In France, policymakers navigated these constraints through a cautious mix of distinction strategies, silence, and securitization. After the Paris attacks of January 2015 and a hasty discussion in Parliament, they eventually passed the 2015 Intelligence Act –the most extensive piece of legislation ever adopted in France to regulate secret state surveillance.
The paper concludes by pointing to the paradoxical effect of post-Snowden contention: French law now provides for clear rules authorizing large-scale surveillance, to a degree of detail that was hard to imagine just a few years ago.
Below is an input statement presented at the 20th New Faces Conference, held on February 27– March 2, 2014 in Istanbul on “Citizenship and Political Participation in the Mediterranean Region”. It is a shorter version of another paper summing ongoing doctoral research. It was also published and translated in Greek on the Artivist e-Magazine.
The Internet is bringing about a new era for freedom of expression and association, as we move toward a more horizontal, diverse and citizen-centric public sphere. The Arab Spring uprisings in 2011 provided a stark illustration of how the ongoing structural transformation of our communications infrastructure can help citizens unsettle authoritarian regimes, empowering civil society in relation to the State. It also showed how the advent of actual democracies is also often hampered by the political establishment, which deploys systems of mass surveillance and online censorship to control the public sphere and compress the emancipatory power of freedom of communication and enforce social control. Again and again, we see the political hopes of social movements clash against the authoritarian tendencies of the power elite.
In this input statement, I would like to build on my research and advocacy work to suggest that such trends are still ongoing in Europe’s supposedly “democratic” regimes: There too, citizenship and political militancy are being transformed by the subversive potential of the free and open Internet, which leads online citizen groups and state apparatuses to clash over the limits of free speech.
Internet and the project of re-appropriation of the public sphere
To understand this conflict, we have to go back to the Internet’s origins. Ever since the idea of computer communications network emerged in the aftermath of World War II, the idea that the free flow of information would serve political emancipation was a guiding principle – a philosophy coined as “informational liberalism”. It was a core belief of early computer scientists and subsequent hacker communities, and it led to the founding utopias of “cyberspace”. The Internet was perceived as space of free communications that belonged to civil society and should not be inhibited by the decayed, old world of ruling technocracies. It was to serve democratic experimentations, withdrawn from state sovereignty and the sanction of the law. John Perry Barlow, an American essayist, former lyricist for the famous rock band “The Grateful Dead” and a pioneer of early online communities famously expressed this in 1996, in a text he entitled “Declaration of the Independence of Cyberspace”. Addressed to the world political elite, this now iconic document opened with the following lines:
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather (…). We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”
By merging with so-called “mediactivist” movements critical of the traditional media and their perceived harmful influence on democratic processes, these utopias paved the way for a project of re-appropriation of the public sphere in the 1990’s, especially through the global justice movement. Informational liberalism inspired social movements to subvert the public sphere’s long-established legal principles, and try to broaden the extent of freedom of speech against the legal provisions that, for instance, ban specific opinions or certain forms of criticism of the established order from the public sphere.
Internet insurgent citizenship & the redefinition of free speech
This is the case of movements such as WikiLeaks or of blogs fighting police abuse, but also file-sharing websites and other forms of engagement in the online public sphere. All these movements aim to use the Internet to alter the power balance within the public sphere by using the Internet’s decentralized architecture. In that respect, they embody instances of “insurgent citizenship”, that is to say political practices operating at the boundary of legality and challenging established-notions of citizenship, claiming new and fuller conceptions of the latter.
The subversive potentialities of online movements of insurgent citizenship ensues from the way in which they revisit the traditional functions of the public sphere (e.g. circulating ideas and opinions within civil society, criticizing power, etc.) with the radical legacy of informational liberalism. For instance, a website like “Copwatch” in France, engages in the uncompromising denunciation of the police, by documenting through videos, photos and texts events of police abuse. The editors say they seek to “provide critical tools to deconstruct the myth of a police force serving the People.” In this respect, they undertake a traditional function of the public sphere, one usually performed by journalists or sociologists working on police violence. However, it also radically differs from these more traditional and well-resourced participants of the public sphere in that copwatching is the work of activists who resort to immoderate and sometimes aggressive expressions against the police. In fact, Copwatch’s members make a claim of not abiding by any “official” deontology. Even though most texts carry an analytical, if at times satirical, style, some posts show plain rage:
“We will not hesitate to use harsh terms against the police, because we think of this institution as the common tomb of mankind, the mass grave of evolution, the daily killing of both deontology and ethics. We will be unequivocal [in denouncing it].”
Let’s turn to WikiLeaks. In late 2006, while working on the launch of WikiLeaks, Julian Assange published an essay in which he theorized its role in the public sphere In this text, he wrote that such an organization should allow any person with access to confidential information a state tries to conceal from its citizenry to decide in good faith that its release is of public interest, and to anonymously leak it. Making secret but public interest information known to the public is undoubtedly an important function of the traditional media. For this very reason, the European Court of Human Rights even elevated the protection of sources as the “cornerstone” of freedom of expression in the landmark 1996 case Goodwin vs. United Kingdom. But by systematizing this activity through Internet technologies and encryption techniques, WikiLeaks (and the many other similar organizations) brings the modern public sphere into uncharted territories, beyond current legal limits.
What is going on in these insurgent practices goes to the core of the “political status” of human rights advocacy. In 1981, in L’Invention démocratique, French philosopher Claude Lefort rightly observed that a polity abiding by the rule of law is necessarily exposed to the “indeterminate nature of human rights” and confronted “with rights which are yet to be incorporated”, as new citizen groups use existing formulations of rights (e.g. those of the French 1789 Declaration of the Rights of Man and of the Citizen) to advance new claims. He called such a process an “opposition of right” (“opposition de droit”).
States strike back to maintain the status quo
As insurgent citizenship unsettles the traditional legal and social balance of the public sphere, representative governments in Europe usually react with segregation and violence, and repress that opposition of right. Two diverging understandings of politics collide: Faced with such “organic” forms of political participation, states aim to reassert the supremacy of “institutional politics”, resisting to the organic counter-powers coming from civil society. In the public sphere, professional and traditional media are recognized as a component of the institutional order as long as they conform to established legal rules and respect a journalistic ethics. But the more irreverent, radical and subversive democratic practices of insurgent movements are denied.
When Copwatch first went online in September 2011, French police unions immediately denounced it as an “anti-cop” website offending the reputation of police forces. The Minister of the Interior decided to bring charges against it, and after a fast-track procedure, a Paris court ordered that the website be blocked by French Internet access providers. The authors of Copwatch were deemed to engage in slander because of the aforementioned quote comparing the police to the “common tomb of mankind.” They were also found guilty of defamation because of a text saying that the border police in the northern city of Calais “trained to hunt migrants, to humiliate them and torture them psychologically.” Before, during and after the trial, Copwatch’s authors managed to remain anonymous. Later, the Minister defended the prosecution saying that, “to ensure police deontology, there is the judiciary, the hierarchy, the national commission for police deontology.” By doing so, he was explicitly denying “ordinary” citizens the right to also play that role from outside the institutional arenas through copwatching.
The political maneuvers against WikiLeaks in the aftermath of the Cablegate provide another example of the repression of insurgent citizenship. In a context where the Vice President of the United States Joe Biden said Assange was a “high-tech terrorist”, WikiLeaks’ hosting provider Amazon, its domain name provider EveryDNS, and finally its payment system providers Paypal, Visa and Mastercard all unliterary pulled out of their business relationship with the organization. WikiLeaks’ very survival was at risk in the country of the First Amendment. In response, Assange and his team strove to ensure that WikiLeaks would remain accessible via other domain names and sought a new hosting provider. The website finally landed in Roubaix, France, in one of the data centers of the hosting company OVH. In France however, the political elite was quick to follow its American counterpart. One member of the then-ruling party at the National Assembly denounced the “despicable methods” of WikiLeaks, a website which she said had “no place in the civilized Internet we ought to build.” In a letter he made public, Minister of the Digital Economy Éric Besson threatened OVH with legal action in a letter made public. Considering that French law already provides a basic procedure for taking down allegedly illegal content from online servers, such a move had one clear purpose: pressuring OVH into following Amazon’s example, taking the WikiLeaks site down in response to the government’s extra-judicial demands. Luckily for WikiLeaks, OVH did not yield to Besson’s pressure and, in the absence of a judicial decision to the contrary, said that it would keep on hosting WikiLeaks. But after its failed censorship attempt, the French government nevertheless continued to resist WikiLeaks’ growing influence in the public sphere. Asked by two parliamentarians about the content of US diplomatic cables mentioning a potential case of corruption of foreign officials by a French company in Turkmenistan, the Ministry of Foreign Affairs stated that it would not “comment on the content of the website WikiLeaks, nor to any press article referring to it.” A posture seeking to exclude WikiLeaks from even the classical channels of democratic control.
So even in “established” democracy, we see a strong push-back by governments and the power elite to reject the forms of counter-powers emerging among the citizenry. These measures are denounced by international organizations defending human rights, such as the United Nations, the Council of Europe or the OSCE. Such organizations have stressed that current approaches to regulating the online speech fail to respect the standards of the rule of Law. But so far, the judicial authority – and constitutional courts in particular – have not been been willing or able to reconsider the current notions underlying freedom of expression so as to legalize insurgent democratic practices. And the influence of international organizations on powerful “established” democracies is very low.
Reforming the law of the public sphere
The enforcement of the status quo leads to the radicalization of insurgent citizenship and paves the way for a revival of actions of “electronic civil disobedience”, as cyberactivists (many of which were also involved in anti-censorship effort during the Arab Spring) take advantage of the specific features of the Internet to challenge law enforcement and protect these democratic practices which they deem legitimate, for instance by putting up mirror site to circumvent censorship. In turn, they also become subject to repression.
At the end of the day, it is the current legal doctrine of freedom of expression that needs to be reformed if the public sphere is to be enlarged, if today’s insurgent and online democratic practices are to be recognized as legitimate acts of citizenship, and if modern representative governments are to overcome the crisis of legitimacy they are facing. The current doctrine of freedom of expression, which in its philosophy dates back to the bourgeois democracies of the nineteenth century, should be overhauled through a meaningful legal reform. This is what many advocacy groups and even some political parties are now working to achieve. The outcome of this conflict between the Net’s insurgent citizens and states will determine no less than the future of democracy, in Europe and beyond.
Abstract: This paper presents ongoing doctoral research on Internet-based movements of “insurgent citizenship” aiming to redefine the right to free expression and communication in contemporary democracies. Since its inception, the Internet has been perceived and lived as a space of free communication and democratic experimentations, withdrawn from state sovereignty and the sanction of the law. Today, these founding utopias are still alive in the militant practices of citizen groups undertaking the critical functions of the public sphere while operating at boundaries of legality, and more specifically of communications law (e.g. press law, copyright). Through such practices, these insurgent movements challenge the existing power balance between civil society and the state within the public sphere. By analyzing three instances of insurgent citizenship on the Internet – a French website documenting police abuse, WikiLeaks and peer-to-peer file-sharing – as well as the repression they undergo, the article assesses the ability of representative regimes to recognize de jure (in law) and de facto (in practice) the structural transformation of the public sphere brought about by the Internet.
Résumé: Cet article présente des recherches doctorales en cours sur les mouvements de « citoyenneté insurrectionnelle » sur Internet qui cherchent à redéfinir le droit à la liberté d’expression et de communication dans les démocraties contemporaines. Dès ses origines, Internet a été pensé et vécu par des mouvements de la société civile comme un espace de libre communication et d’expérimentation démocratique, à l’abri de la souveraineté étatique et de la sanction du droit. Ces utopies fondatrices structurent aujourd’hui encore les pratiques militantes de groupes citoyens qui reprennent les fonctions critiques de l’espace public en opérant aux frontières de la légalité, et en particulier du droit de la communication (droit de la presse, droit d’auteur, etc.). Ce faisant, ces mouvements « insurgés » mettent en cause le rapport de force entre l’État et la société civile au sein de l’espace public. En analysant trois exemples de citoyenneté insurrectionnelle sur Internet – un site de surveillance citoyenne de la police, WikiLeaks et une plate-forme peer-to-peer d’échange d’œuvres culturelles – ainsi que la répression que ces mouvements subissent, l’article interroge la capacité des régimes représentatifs à reconnaître en droit et en faits la transformation structurelle de l’espace public induite par Internet.