France seeks to penalise smartphone companies blocking terror investigations

Jewel Samad / AFP | An anti-government protester holds up his iPhone with a sign "No Entry" during a demonstration near the Apple store on Fifth Avenue in New York on February 23, 2016

The Apple-FBI debate has reached France, with the National Assembly agreeing on Thursday to an amendment that would penalise smartphone manufacturers who do not cooperate with terrorism investigations.


The amendment specifies five years of imprisonment and a 350,000 euro fine for “a private company which refuses to hand over to the relevant judicial authority investigating terrorist crimes … protected data which it has encrypted.”

Introduced by former president Nicolas Sarkozy’s party Les Républicains, the amendment is part of a proposed law that would strengthen penalties against terrorism and organised crime. The law is set to be voted on March 8 in the National Assembly, the French parliament’s lower house.

This is the first time questions over smartphone privacy and national security have entered the French parliament since Apple sparked a debate in the US after saying it would challenge a court order to provide the FBI technical assistance to help break into the San Bernardino attacker’s iPhone.

‘Send a message to companies’

The confrontation between Apple and the FBI clearly inspired the amendment that Les Républicains introduced on Thursday.

Eric Ciotti, one of the Républicains representatives behind the amendment, evoked the Apple-FBI debate in his defense of the measure.

“We must send a message to companies,” Ciotti said, arguing that the government should have the power to compel companies like Apple to use “all available means” to turn over information to authorities during a terrorism investigation.

Yann Galut, a Socialist representative, also invoked the Apple-FBI wrangling, suggesting that a lack of appropriate legislation in the US had allowed Apple to win the debate with federal authorities over data protection.

The Assembly rejected another Républicains-backed amendment that would have allowed even harsher penalties   2 million euros in fines and a one-year ban on sales   for any tech company that refused to cooperate with a terrorism investigation.

International complications

Critics of the amendment think that it will be both difficult to enforce and potentially dangerous for civil liberties.

The Hollande government opposed the new measure. Minister of Justice Jean-Jacques Urvoas agreed with the amendment’s goals, but said that the fact that penalties were being increased only for terrorism cases could pose “problems for the penal code’s consistency”.

“It’s a good start, but if it just stays in France it isn’t enough,” said Daniel Guinier, an expert in cybercrime before the International Criminal Court in The Hague. “There has to be an international negotiation about this,” he told FRANCE24.

Blandine Poidevin, a French lawyer specialising in information technology, agreed that the international nature of smartphone manufacturing would make implementation difficult: “There are no French smartphone manufacturers, and this law will be difficult to apply to foreign manufacturers.”

Poidevin was also concerned that “there is not a definition of what a terrorist act is” in the amendment, which means the definition could be very loosely applied in the future.

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