When Fear Legislates
Security, Privacy, and the Permanent State of Exception
United States after September 11, France after 2015, the same shift, two different stories.
Dear readers and subscribers,
You can read below the English version of my original article in French from March 25th, 2026. Available here.
I created this article following a reflection published by my dear friend Anonymous in his article from March 22 (see below). He proposes an engaging exercise. Namely, I quote, “Study a historical moment where security concerns increased governmental power.” Analyze the lessons that ensued. Understanding the past helps protect the future.
After a quick and clear reflection and a brief conversation with Bouamama Jamal, I decided to undertake this task in French, since it is my mother tongue.
There comes a moment, in every democracy struck by a collective trauma, when the question is no longer just how to protect oneself, but how far one is willing to accept being protected. This moment arrives in urgency, in pain, in the sound of flags at half-mast. When it passes, it leaves behind legislation that ordinary time would never have produced.
It is this mechanism—the exploitation of shock as a legislative engine—that the United States after September 11, 2001, and France after the 2015 attacks share, with a fifteen-year interval.
September 11 and the Birth of the American Surveillance State
Forty-five days after the towers collapsed, Congress passed the PATRIOT Act. Three hundred and forty-two pages. A debate lasting a few hours. Some senators will claim they didn’t have time to read the text before voting.
The content is revolutionary in what it allows: wiretaps without a judicial warrant, access to bank statements and browsing histories, and the creation of the legal figure of the enemy combatant—a hybrid category invented to circumvent the protections of the Geneva Convention. Any resistance risked being interpreted as symbolic complicity with the enemy.
We will have to wait until 2013 and the revelations of Edward Snowden to measure the true extent of the system. The NSA was mass-collecting telephone metadata from the entire American population through the PRISM program, with the cooperation of major private operators. Mass surveillance had become the invisible architecture of daily life. The PATRIOT Act, presented as an exceptional response, will be renewed three times before being partially reformed in 2015— after fourteen years of silent normalization.
France in 2015: the double trauma
France did not experience just one September 11. It has experienced two, ten months apart.
January 2015: Charlie Hebdo, the Hyper Cacher, seventeen dead.
November 2015: the Bataclan and Parisian terraces, one hundred and thirty dead. The country enters a state of shock unprecedented since the Second World War.
In July 2015, the intelligence law was adopted less than six months after January. It authorizes the surveillance of electronic communications without prior judicial approval and the installation of “black boxes” at telecom operators to analyze data flows in real-time. The CNIL expresses severe reservations. The political context makes any audible opposition difficult.
After November, a state of emergency is declared. What was supposed to last twelve days will last two years, extended six times. Thousands of administrative searches are carried out without going through a judge. A tiny fraction leads to prosecutions related to terrorism.
The epilog follows the same pattern as in the United States. In October 2017, the SILT law incorporated the key measures of the state of emergency into common law. The words change: “home visits” and “individual administrative control measures.” The powers remain.
The same pattern, four phases
The comparison reveals a common mechanism.
First phase: the traumatic shock suspends rational debate.
Second phase: the legislative window opens, and projects that have long been blocked by liberal opposition suddenly become adoptable.
Third phase: the normalization of the exception, where legislative sunsets are regularly postponed and emergency measures become ordinary tools.
Fourth phase: the delayed revelation, with Snowden for the United States and the reports from the CNIL and the Council of State for France, allows the public to gauge the true extent of the system. But at this stage, the law is already made.
What unites these two stories is an implicit conception of privacy as a variable adjustment of security. However, empirical studies tend to refute this thesis. The report by the American Privacy and Civil Liberties Oversight Board concluded in 2014 that the mass collection of metadata by the NSA had not decisively thwarted any terrorist plots. In France, the 2015 attacks were carried out by individuals already known to intelligence services—which raises the question of analyzing existing data rather than its volume.
Checks and balances: an instructive differential
The parallel also reveals a structural difference. In the United States, the counter-offensive came from civil society and an individual whistleblower acting outside any institutional framework. The Foreign Intelligence Surveillance Court, a secret court responsible for authorizing surveillance, approved almost all government requests.
In France, the CNIL constitutes an integrated institutional counter-power, capable of issuing binding public opinions. Associations like La Quadrature du Net have obtained decisions from the CJEU that forced the government to regulate certain measures. This differential does not change the underlying trend. But it introduces institutional friction that distinguishes the French model from a mere capitulation to the security executive.
In 2003, Giorgio Agamben analyzed how modern democracies had made emergency a mode of ordinary governance. He was writing in the wake of the PATRIOT Act. He could not have known that France would provide him, twelve years later, with a striking confirmation of his thesis.
The state of exception is not the opposite of the rule of law. It is, increasingly, its secret interior. The question is not only whether these powers are being used well today, but also in whose hands they will be tomorrow.
But, because a democracy that renounces its fundamental freedoms to defend itself has already, to some extent, lost what it claimed to defend.
Main sources:
Law No. 2015-912 of July 24, 2015, on Intelligence.
Law No. 2017-1510 of October 30, 2017 (SILT).
USA PATRIOT (Pub. L. 107-56).
USA FREEDOM Act (Pub. L. 114-23).
Report of the Privacy and Civil Liberties Oversight Board, July 2014.
Giorgio Agamben, State of Exception, Seuil, 2003.
Annual reports of the CNIL 2015–2022.
 | A guest post by
|