What effect will Nicolas Sarkozy’s blunders in tech and data protection have on the 2012 elections?

Just as it has in the United States, public policy in other countries started focusing on tech in the last ten years or so, after the Internet had become the principal vehicle for accessing and sharing information and the need simultaneously arose for a regulatory framework allowing it to operate optimally. While in most Western countries the corresponding need has been broadly the same one—balancing the right of free access to information with the need to protect existing rights—the differences have also been astonishing: while in the US, a sophisticated system of individual rights built on top of the Bill of Rights generally, and the First Amendment specifically, managed to shape policy even in the singularly illiberal Bush years, France has had no such tradition: French politics since the Revolution has asserted the right of any government vested by the people with a representative mandate to conduct policy freely in the nation’s best interests. The result has been that a doctrine such as fair use, or a relatively balanced piece of legislation such as the Digital Millennium Copyright Act, have no equivalent in France, where the letter and spirit of pre-digital copyright legislation continues to govern relationships between actors in the digital age [i].

When looking at these issues, one must also remember that France’s Constitution puts the President of the Republic at the apex of its institutional system—and while that principle has been considerably diluted since General de Gaulle created the function, next year’s presidential election, together with the attendant National Assembly general election due one month later, will determine the essential direction the country will take for the following five years.

Public policy continues to play a greater role in France than in other countries: the 2012 presidential elections will be a major watershed in a number of issues

M Sarkozy can be expected to seek re-election to the office entrusted to him in 2007 and, unless something unexpected happens, the second ballot in May will offer the French people a choice between the outgoing incumbent and M Hollande, the moderate, liberal-leaning candidate designated by the Opposition Socialist Party in a nationwide primary last autumn.

In most other countries, public policy tends to focus exclusively on economic or foreign-policy issues, but this is unlikely to be the case in France. Debate so far in the French press has mainly covered the two candidates’ personalities and their precise proposals for dealing with the rather dire situation in which the once proud French economy is left, after five years of M Sarkozy’s administration, goes curiously unmentioned. Even more curiously, to non-French eyes, will be the place traditionally accorded to cultural policy and, in recent years, to tech-related issues, by the media when covering French politics. It’s a subject I’ve covered before and, all in all, an important one both in a French and an international context.

M Sarkozy and the ruling UMP party have adopted a singularly illiberal stance on the Internet and on tech

M Sarkozy’s campaign for the French Presidency, in 2006-2007, had little to say about the Internet. He has never shown the slightest interest in information technology and does not use a computer—although he has belatedly realized the damage his total tech illiteracy was doing to his image and now (December 2011) claims to be using an iPad.

His presidency, however, has been marked by an unprecedented onslaught on the tech sector, instituted largely in a desperate attempt to shore up the entertainment industry, to which M Sarkozy, his pop-singer third wife, Culture Minister Frédéric Mitterrand (a former television chat-show director) and the UMP party are all extremely close, via the HADOPI three-strikes and you’re out law adopted in 2009.

Despite the determination with which the Sarkozy administration has attempted to police the Internet, its actions were totally ineffective, as the measures it enacted proved impossible to enforce from the start, a fact that was widely pointed out and led to pretty universal ridicule. The government’s utter ignorance about even the most elementary technical facts underpinning how the Internet works included, famously, a long-held delusion that illegal streaming can be effectively policed.

M Sarkozy, who never shies away from a policy volte-face if he perceives it to be in his interest, famously expressed doubts about his HADOPI brainchild in April this year:

Je prends d’ailleurs ma part de l’erreur. (…) L’intuition que j’avais, c’est qu’on ne pouvait pas (abandonner) les créateurs. Peut-être que la maladresse a été de donner le sentiment que vous étiez attaqués. [ii]

(M Sarkozy at the Conseil national du numérique, Le Monde, April 27, 2011)

The President’s office, however, swiftly issued a press release retracting those comments and his administration has since stuck to its previous uncompromising stance on the issue: in November 2011, he announced the government’s intention to tax ISPs to finance a new National Music Centre and his desire to extend the existing anti-piracy provisions to streaming.

The current French administration’s repressive stance has not been confined to policing the Internet, extending to to data protection

The Sarkozy administration has also been prepared to scale back significantly the protections enshrined in France’s 1978 Data Protection Act.

It is now forgotten that there was an earlier attempt, called SAFARI, by a French government to create a centralized database of personal data. On March 21, 1974, an article in the newspaper Le Monde, “SAFARI ou la chasse aux Français” (SAFARI; or, Hunting Frenchmen) brought public attention to the project. France’s data protection watch dog, CNIL, was instituted following the scandal this created and as a result of which it was given extensive powers to enforce individual citizens’ rights of access and privacy—at subject still extremely sensitive at that time, given the Vichy régime’s 1941 attempt to set up a centralized nationwide file detailing, among other things, individual citizens’ religious and political affiliations. This database was then used by the collaborationist police to arrest and deport thousands of French and foreign Jews. A report by M Joinet, its first director in 1978-1981, which was circulated by CNIL just two years prior to M Sarkozy’s election shows how sensitive the subject remained until that time.

The Sarkozy government, on the other hand, has felt constrained by no such scruples. Immediately on gaining office, it embarked on creating a series of databases recording an astonishingly wide range of information about private individuals, in most cases people without criminal records.

In July 2008, the Sarkozy government created a database called Edvige, which on investigation turned out to be so injurious to civil liberties (the government was, for instance, empowered to included anyone’s political affiliation or sexual preference in it, even on the basis of hearsay) that the Prime Minister was compelled to descend it altogether the following November; it was replaced with a database from which the most objectionable aspects had been removed.

The French government recently went a step further in the same direction when a bill was adopted by the National Assembly at the government’s request, aimed at creating a fichier des gens honnêtes (a database of honest people). The Sarkozy administration is thus embarking on the same path as the Bush administration with the Patriot Act, and the Blair government with its compulsory identity card scheme—since withdrawn by the present Coalition government). A recent article on French investigation site OWNI goes into some of the possible reasons for M Sarkozy’s relentless drive to keep track of every detail of his compatriots lives.

All in all, thus, M Sarkozy’s obsessive intrusion into individual citizens’ privacy in the name of copyright protection or terrorist prevention has unquestionably exposed him to both anger and ridicule—given the technically inept way in which it has been carried out. The same can be said of the half-baked attempt to set up a government data base, Etalab, of which only 1 per cent is available in an open format, despite initial promises to the contrary.

Will the Sarkozy administration’s appalling record in tech and data protection have any effect on the forthcoming presidential election?

While M Hollande, the designated opposition candidate, has said little as yet on these subjects, he can expect his support to be significantly boosted by the government’s repressive stance on tech issues and on data protection.

So far, however, he and his advisers appear to have chosen to say as little as possible on policy issues until the election campaign actually begins—which can be expected to happen in February. His designated spokesman on tech issues, Madame Fleur Pellerin, a young member of the Court of Auditors, has already begun meeting members of the tech sector—in which resentment of M Sarkozy’s policies failures is strong—and it can be expected that this will encourage the opposition to express positions that will improve the quality of debate in this area.

Tech and data protection are, of course, only one among many issues likely to be debated in the French presidential election. Yet this issue matters, arguably more than others: the Internet is one of the main contributors to growth in the US, the UK and a rising number of North European economies. France lags behind, in sharp and surprising contrast to the leading place it still claimed to to occupy in the technological field as late as the 1960s. OWNI’s remarkable report shows that despite all the obstacles the authorities have put in its way, the Internet accounts for c. €30bn in GDP and 1.15 million jobs or 4.2 per cent of the working population. Even more significantly, it accounted for 20 per cent of French GDP growth between 2004 and 2009. So the Internet unquestionably has the potential to become a much bigger contributor to economic growth in one of Europe’s most deficient and stagnant economies if recent mistakes are reversed: it can only be hoped that France’s next government will understand this better than its current one.

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  1. Incredible as it may seem, copyright in France continues to be governed essentially by legislation enacted in 1957. []
  2. I’m quite prepared to admit it: I was party to the mistake […] My intuition was that we couldn’t leave creators on the wayside. It may have been wrong to give the impression that you were being targeted. []