2015-01-20 Charlie Hebdo vert

The horrific terrorist attack at the Charlie Hebdo offices in Paris has shaken the European continent profoundly. The tragedy lays bare controversial and divisive questions regarding free expression and efforts to prevent terrorism and violence motivated by political and religious extremism. European leaders have been quick to announce heightened security responses. However, caution is needed to ensure that any new security measures are proportionate, that they strengthen and advance the free expression rights of all, and that they avoid creating a chilling effect from surveillance.

In the wake of these traumatic attacks, it is understandable that governments and policy makers in France and across Europe consider new measures to minimize the risk of such attacks in the future. But they should avoid adopting new policies in an atmosphere of panic, emotion, and outrage.

Freedom of Expression Must Include Offensive and Provocative Views

The Charlie Hebdo massacre represents a direct attack on freedom of expression.

When press organizations are singled out for violence, when journalists are targeted and killed, it is done to silence speakers and to deter others from speaking. It is a shameful tactic, and an all-too common one: Scores of journalists, writing to question authority and challenge beliefs of every kind, are murdered each year. Violence against journalists is a direct act to curtail freedom of expression. The deplorable result is artistic and journalistic self-censorship and stifling of public debate on issues that may provoke violent responses.

Governments have a clear duty to protect free expression rights. As they respond to this crisis, however, they must be sure to avoid suppressing precisely those rights that are under threat. Millions of people in France – and around the world – have stood together to support Charlie Hebdo’s right to publish views that many people see as deeply offensive. This mass expression of support for fundamental rights is admirable, and demonstrates an implicit recognition that intense, critical, intentionally provocative expression serves a crucial role in democratic society.

It is therefore extremely concerning that some police and judicial authorities are cracking down on people who instead express varying degrees of sympathy with the perpetrators and understanding of their motives. While national law may permissibly restrict direct incitement to violent action under international human rights standards, it appears from available reporting and commentary that authorities are taking a very expansive reading of French law against “condoning terrorist acts” – which, in a particular concern for CDT, applies harsher penalties to online speech. Reportedly, French authorities have indicted more than 100 people for such offenses, including the controversial entertainer Dieudonné, who posted on social media that he felt a closer affinity for the attackers than for the victims.

It is not justifiable to suppress points of view merely on the basis that some individuals find them repellent. People are entitled to hold and express views that others find abhorrent – this is what free expression means. Forcing these views underground by police action will not change the minds of the people who hold or listen to them. Challenging them in open debate might.

Problematic Policy Responses Already Underway

Already on the day after the attack, the French government put forward a draft decree which would oblige Internet service providers to block websites proscribed by the French Ministry of the Interior. The emergency legislation would cover websites deemed by the Ministry to condone or incite terrorism and sites carrying child pornography. This proposal is problematic: it calls for domain-name blocking, a technique which is at once ineffective at rendering a website inaccessible and also vulnerable to over-blocking of lawful speech. If this decree is rushed through, we will lose the opportunity for public debate on the effects of the technical remedy or the scope of lawful content affected by the initiative, and there will be no inquiry into whether this approach would do anything to enhance security.

In a joint statement from 11 January, Interior Ministers from European and other countries set out a range of ongoing and future counter-terrorism initiatives. The statement includes a section focused on the Internet, in which the Ministers calls for “the partnership” of Internet service providers in reporting and removing “material that aims to incite hatred and terror.” It is not clear from the statement what additional cooperation the Ministers might seek from ISPs, but there is no indication that any action by ISPs and Internet companies could have in any way prevented the tragedy at Charlie Hebdo.

In addition to these proposals that focus on blocking and removal of online content, the attacks provoked immediate calls for expanded surveillance powers and even greater powers for intelligence and law enforcement agencies to access personal data and intercept communications. Notably, UK Prime Minister David Cameron is pushing hard for restrictions on the use of encryption in communications (even as the latest Snowden leak reveals a 2009 report from the US National Intelligence Council that discusses the essential role encryption plays in protecting private – and government – data). These reactions are predictable, and they are also deeply concerning. Police and intelligence agencies across Europe already have extensive powers and resources to conduct electronic surveillance and to collect and process vast amounts of data on citizens. Again, judging by media reports, there is nothing that suggests that a lack of electronic surveillance capability was a factor in these terror attacks.

Governments are right to consider their options in combating terrorism, but they should not use the panic and confusion following this traumatic attack to push through emergency measures without solid consultation and consideration. An open society will constantly need to protect itself from those that seek to harm it, but in doing so it must not undermine the freedoms that make it worth defending.