bulletin lambda 2.08
Go to : OECD fails to act on key-escrow encryption
The French Telco Act, which was voted by the Parliament on June 7, may follow the same path than the U.S. Communications Decency Act. A group of Socialists Senators has sent a request to examine eventual unconstitutionality of the law.
The new Act, due to meet new criteria for telecoms competition in France, has also taken some steps to create an administrative control of speech and services via online services and the Internet. The new council, le Conseil Supérieur de la Télématique, "could block the free communication of thoughts and opinions, and may eventually establish a principle of preliminary declaration" for online speech, reads the document given to the Conseil Constitutionnel, the supreme watchdog of the French 1958 Constitution (and the principles of the 1789 Declaration des Droits de l'Homme et du Citoyen).
The left-wing party asked for constitutional formality with the help of the newly created Association of Internet Users (AUI, see their arguments on the law at www.aui.fr).
Indeed, the law may breach article 34 of the Constitution which says that the Parliament alone could indict rules concerning "the basic garanties given to citizens for the exercice of their civil liberties". But the newly created CST may appreciate if a Web site or a newgroup may be illicite according to the French Penal Code. This "appreciation" is not sufficiently well defined in the Telco Act, constitutionnal jurists said.
Article 66 of the Constitution also states that the appreciation of the Penal Code should be the role of the penal judiciary (le Juge Penal), but shouldn't depend on any administrative body or any administrative judge (Juge Administratif).
But other voices said that the existing Conseil Supérieur de l'Audiovisuel (which regulate broadcasting content) is based on the same principles. Then, the Conseil Constitutionnel will have to make a difference between a TV program and a Usenet feed. That's what the Philadelphia Court acted when they censored the CDA.
Final decision awaited in Paris before the end of July (July 26th in theory).
The Paris-based OECD, the 24-members club of industrialised nations, has failed to take a step towards international recongnition of key-escrow encryption. The meeting of June 26-28 in Paris, scheduled to take a firm decision about the possibility of law enforcement agencies to read electronic mail of private individuals and corporations, didn't succeed to act on a compromise. The OECD's general secretary has no special power to draw regulations and must find a common policy on the matter.
Sources said the OECD has been set apart between "the key escrow group" -- mainly USA, France and Britain -- and the"laxist" group -- mainly Japan and Europe's Scandinavian countries like Sweden, Denmark and Finland (Germany was still uncertain).
A press release of the OECD says that no final decisions were made. There will be no other comment of the case.
An OECD spokeswoman said the organisation asked independant experts from the Electronic Privacy Information Center (Washington, DC) to participate in preliminary meetings. The EPIC prefers not to make any comment until the next meeting in September.
Sources said the US were willing to "use" the OECD as a "policy laundering" machine : to pressure the organisation in order to have the key escrow policy approved by the 24 countries. US intelligence officials would have been using it as a political weapon at home, where Congress, public-interests groups and industry pressure groups are on the verge to act against any key-escrow policy.
RAPPELS : French
Telco Act and Internet control : bulletin 2.08.
Please read the following bulletins relative to censorship on the
Internet : 2.01, 2.04
(fr), 2.05, and
1.10.
Check the
encryption page for encryption policies.