FRENCH INTELLIGENCE LAW AN ALGORITHMIC POWER ?

To speak of a  » surveillance society » to characterize the mutation of the relationship between the State and the citizen, does not allow us to understand the extent of the transformation. It is not a question of controlling behavior, but, thanks to the figures resulting from the cross-referencing of their data, of attributing a specific intention to individuals and thus revealing their potentially terrorist nature. The new  » anti-terrorist » laws are not intended to monitor bodies, but to make people internalize the absolute power of the administration over their public and private lives. We are no longer in propaganda, in false consciousness. The power shows us that it lies to us in order to place us in a situation of impotence and that we give up defending our liberties. The latest anti-terrorist laws have a super-moic character, they attack « the very desire for resistance. »⁽¹⁾ Their function is to nullify that which preserves the desire and capacity to confront the real manufactured by power. 

The law on intelligence is the latest initiative of the French government to suppress the privacy of its citizens. The legal registration of the cancellation of public liberties will be the fact of the constitutionalization of the state of exception. 

THE LAW ON INTELLIGENCE 

On July 23, 2015, the Constitutional Council, by a large majority, validated most of the  » Intelligence Act. » The French intelligence services can install a  » black box  » on the premises of access providers to monitor Internet traffic. Metadata are captured: origin or recipient of the message, IP address of a visited site, duration of the conversation or connection. The possibility of lifting the anonymity of the data, if necessary, shows that the data are indeed identifiable. 

The text extends to intelligence techniques that were previously reserved for judicial investigations: microphones, cameras, geolocation beacons, spyware. The law also authorizes the installation of false relay antennas to capture, within a determined perimeter, the connection data and the content of conversations of all persons communicating by phone, computer, laptop . 

It is a question of allowing the systematic, generalized and undifferentiated collection of a large volume of data which may, if necessary, relate to persons totally unrelated to the mission. The work of the intelligence services is therefore changing in nature, no longer focusing on agents of a foreign power, but mainly on French nationals. 

The decision and control of the implementation of these secret devices are entrusted to the executive. This removes any judicial guarantee. In short, this law provides the executive branch with a permanent, clandestine and virtually unlimited means of monitoring citizens. 

MUTATION OF THE INTELLIGENCE SERVICES 

The missions are no longer focused on « territorial defense » or « prevention of any form of foreign interference ». Moreover, the question of national independence has long since ceased to be a concern of French and European intelligence services. Several secret US documents show that France is indeed participating in the NSA’s  » trawling « , spying on its own nationals, as well as those of other European countries on behalf of the US agency. A recently declassified « top secret » article from the NSA’s internal magazine Cryptologic Quarterly, dating from 1989, reveals the increased cooperation of the USA with the  » Third Party Nations « , of which France has been a member since the 1980s. What is true for France is also true for the other EU member states. 

The reorganization of intelligence services around the  » surveillance  » of their nationals is part of an imperial structure whose enemies are not only the few nations that escape its control, but above all their own populations. The possibility, for the US citizen or for any national of a country that is not at war with the US, to be named as an enemy by his government, already exists in the US law. This possibility also concerns Europeans thanks to the extradition agreements signed between the EU and the USA. The increasing militarization of the armament of US police forces is also a symptom revealing the mutation of the relationship between the governors and the governed and the absence of distinction between the interior and the exterior of the nation. 

A SYSTEM UNSUITED TO THE « FIGHT AGAINST TERRORISM 

Black boxes, designed to record our behavior, are justified by the belief that « groups or individuals engaged in terrorist operations have characteristic digital behaviors. » The mathematical algorithms used proceed by analogy with commercial « datamining. » However, the latter is based on models developed from a large number of repetitive experiments. Terrorist attacks, on the other hand, do not have the necessary frequency and do not follow any predefined protocol. The Charlie Hebdo attacks, as well as the massacres in Paris on November 13, show that these measures, already in force, do not allow any preventive action on terrorist actions. 

The function of this law is that people consent to the intrusion into their privacy. While it is a fundamental right enshrined at the European level by Article 8 of the European Convention on Human Rights, Interior Minister Cazeneuve asserted that « the right to privacy is not a fundamental freedom. »

The system seems to be perfectly locked: it has become a crime to bring illegal measures to light. For the General Secretary of the Syndicat de la Magistrature, Laurence Blisson:  » if you reveal illegal surveillance, it would be a criminal offence. There is a risk of total impunity for intelligence agents.« Indeed, Article 13 extends criminalization to the disclosure of even illegal surveillance measures. 

A « PANOPTIC » SOCIETY 

The necessary consent of the people to the abolition of their freedoms explains why this abolition is enshrined in law and does not simply proceed by suspension of the Constitution, as, for example, in Nazi Germany. The minister thus poses as the defender, not of a state of exception, but of a permanent legal order, that of a panoptic society, where everyone is placed under the gaze of power and submits to the injunction to reveal his or her intimacy. 

This project is not new, it has existed since the beginning of capitalism. It had already been theorized, at the end of the 18th century in England by Jeremy Bentham. Wanting to create a model prison, he had developed a model of prison architecture called « Panopticon » allowing a guard, housed in a central tower, to observe all the prisoners, locked in individual cells around the tower, without them knowing if they were being observed. Each cell is visible from a central point. The inspector, invisible himself, reigns as a spirit. 

Thanks to the installation of the « black boxes », the « to see without being seen » is now generalized to the whole Net. Bentham shows that the presence of the eyes of the other is not necessary to the omnipresence of the inner look. « It is enough that something (here the law) means to me that others can be there » said Jacques Lacan. The prisoner, like the Internet user, must be entirely subject to the gaze that is cast upon him and internalize it. The invisibility of power prevents any perception, the individual is then reduced to « watching himself being watched », to imagining the disapproval or benevolence of the administration towards him. The subject cannot escape this scrutinizing and omnipresent look. He sees himself destroyed. 

ABOLISH ALL RESISTANCE 

The body does not face anymore. Having become transparent, it is only an empty form that the public power can invest with its affects. The subject is then abolished and merges with the object-view, with the desire of the other. It becomes the object of the omnipotence of the State. 

Bentham’s prison and the installation of black boxes are not products of a surveillance society, but of a panoptic society where the objective is no longer to control bodies, but to enclose the individual in the gaze of power. The individual identifies himself with the supermomic injunction. It is not a matter of submitting to any order, but of merging with it and offering oneself « freely » to it.

This procedure proceeds to a disintegration of all social relations, it corresponds to a monadic society, in which the individual has no Other but the state power which ensures the relation between monads. It corresponds to a pure capitalism, as Bentham already thought. 

The antiterrorist legislations and provisions suppress the intimate and thus any possibility of distinction of the individual from the State, the monad forming a unity with it. It is only the product of his intentionality, of his judgment. Thus, this law is not intended to  » fight against terrorism « , to face a « new enemy within « , nor even to exercise a « surveillance. » of the populations, but to signify to the citizen that he no longer has an existence of his own, that he no longer has any other place than the one fixed for him by the word of the power and to tell him that he has no other choice than to be a good child of the mother state or to be designated as a terrorist. 

AN ALGORITHMIC POWER 

Not only is the implementation of « surveillance » devices extremely vague and leaves all room for interpretation by the administration, but it also claims to be subjective. The automaticity of the algorithm leads to it becoming self-learning, i.e. it generates the criteria according to which the designation of terrorist is made. 

The unpredictability of the effects of the law is one of the objectives of this legislation. It plunges individuals into permanent uncertainty, with the population constantly wondering whether they are being observed and what behaviors they should preventively adopt, for example, which Internet sites they can visit. In short, it is not a question of identifying behaviors that reveal a particular intention, but of locking all citizens into the gaze of power. 

Today, power is increasingly expressed algorithmically. Thus, the implementation of black boxes is based on the belief that one can have access to reality without the mediation of language and the interpretation of reality. The aim is to detect possible terrorists, even before the beginning of the preparation of an action. Thus, as Antoinette Rouvroy formulates it, it is the « real that will speak for itself: terrorists will betray themselves through their own data, without us really having to translate their motivations, the causes of their actions. » So the terrorist exists because his or her nature is revealed by algorithmic data processing. This automatic device produces its own principles of evaluation and makes the act of appointing power immune to arbitrariness and error. 

The use of metadata would exhaust the possibilities and remove any uncertainty. The automaticity of the procedure puts us outside the language. It would directly reveal reality, removing human subjectivity and the question of choice. The objectivity of the machine, of the algorithm’s work, would allow to predict events, to foresee the preparation of attacks, even if the monitored individual is not yet fully aware ofhis« radicalization path » and thus to act preventively on it. Thanks to the belief of a mastery of potentiality, the simple possibility becomes immediately real. Virtuality, the word of power and the reality of terrorism are then confused. 

A SURMISING LAW 

The intelligence law identifies the person with the quantification of his data, with the score assigned to him by the algorithm. The individual is reduced to the quantitative relationship established between his or her supposed good and bad behaviors. Removing the battery from one’s mobile phone, encrypting one’s messages, i.e. wanting to avoid the gaze of the authorities, are attitudes that are rated negatively. A certain score of such inappropriate behaviors, as well as visiting « jihadist » or « conspiracy » sites can lead to the qualification of « terrorist ».

The intelligence law does not prohibit, it does not regulate the existence of populations, but thanks to the omnipresence of the algorithm, it suppresses language. By attacking the possibility of forming a word, the law annihilates the capacity to confront the real fabricated by power and thus the possibility of a becoming. It does not formally prohibit encrypting messages or visiting negatively labeled sites. It simply expresses « you are nothing else than what can be seen », than the traces you have left on the Net. Thanks to the algorithm, no otherness could be removed from the gaze of institutions. All negativity is removed. 

The law on intelligence is well inscribed in a superegoic problematic, that of an archaic superego of maternal type, a « oppressing and ravaging » superego that embodies an absolute knowledge on the real of the subject. The latter is only the result of the way he is named by the « surveillance » device that designates him as a potential terrorist. The subject is automatically revealed by the number, by the score that is assigned to him in relation to his telephone and computer data. 

ABSOLUTE KNOWLEDGE OF A TOTALITARIAN POWER 

What gives this judgment its irresistible force is that it does not derive its strength from any relation to truth, to reality, but from the reality of the subject. What matters is not that the suspected individual corresponds to the results of the algorithmic calculation, that he had the actual intention to commit attacks, but that he is designated as such and that this assertion cannot be confronted, since the function of language is annihilated. Difference and opposition can no longer be thought of. In the absence of a signifier, of material support for discourse, the signified « terrorist » flies on its own. 

The individual is no longer a subject, but simply the sum of what is captured and quantified by the machine. The attestation of the truth is not enough to face the nonsense of the supermale injunction. We are no longer in the propaganda, but in front of a staggering superego that intimates « not a word ». It is then necessary to break the radical impossibility of contradicting the meditative superego and to restore the possibility of saying no. 

The intelligence law is also an over-meaningful law, in that it does not provide any details. It does not mention prohibited sites or persons; it is up to the user to presume for himself the searches he will be allowed to make on the Net without suffering administrative or penal consequences. He will have to constantly evaluate the demands of power. Thus, as Jean-Daniel Causse writes about the inner law of the superego: « As it does not give content to the forbidden, the law becomes infinite and totally arbitrary when it is dictated by the superego.The penal law is then the expression of a totalitarian power. 

Jean-Claude Paye, sociologist, author of L’Emprise de l’image. Yves Michel 2012.