In free countries, bad people have more freedom to be bad

With freedom, we often think we can have it all. Sadly, we can't.

The downsides of speech — the massacre last week of French journalists, cartoonists, and police officers by terrorists over a damned cartoon — suggests as much. But so does the trouble the French police had in preventing the attack in the first place. According to a number of news organizations, the France DCPI (the country's internal intelligence agency) knew one of the suspects well, and had tracked the movements of several others. ADAT, the French counter-terrorism police, even stationed officers at the editorial headquarters of Charlie Hebdo because of direct threats levied against its cartoonists.

But France is a free society. By the standards of European democracies, the French government has reserved broad powers to conduct surveillance on citizens, and oversight of its police agencies and intelligence organizations is less rigorous than in the United States. There is only so much, however, France can do, even with its new authorities. There is only so much any single government can do.

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And while we want the French government to have somehow done more in this case, we would be in fact granting to the government even greater latitude to determine whether political speech, which, along with journalistic speech, deserves of the maximum amount of protection, crosses an invisible line.

Consider what this would be like in America. Do we really want the FBI deciding that just because an American citizen supports the goals of Hezbollah, or believes that Israel is an illegitimate country, or even believes that publishing cartoons about the prophet warrants a violent reaction, that that person somehow warrants detention, that that speech is not worthy of at least some protection?

This is an open debate, surprisingly. When communism was the bugbear, the FBI and the NSA essentially made it illegal to believe in communism. Islamic extremism is now the enemy (and arguably, it is more dangerous to Americans than communism ever was as an ideology.) The argument is this: If there is something bad about Islamic extremism, then why should we have to tolerate something bad? Why should we have to protect its expression so long as it does not directly lead to violence?

In fact, I made a version of this argument when I wrote my last column. I argued that procedural sensitivity, when applied by newspapers, is foolish. But procedural sensitivity, when applied by government, can be quite dangerous. Only government can forcibly and without recourse deny people their rights. The standard ought to be much higher. We can set down a bright line, as the FBI and NSA, in 1978, were able to do when Congress gave them the right to monitor (with a warrant) the content of conversations of American citizens who merely associate with bad foreigners.

But should we do more? Should we detain people who post statements of support for ISIS on a website? If I wrote, for example, "Go ISIS!" on Facebook, and if I believed in my short statement of encouragement, and if I regularly searched Google for ISIS-related forums, would that or should that be enough for the government to start keeping tabs on me? Should it detain me? What if I wrote that "I think Charlie Hebdo ought to be punished for its desecration of the prophet."

Maybe, maybe, maybe, the FBI should be able to watch me. Maybe. But detain me? For what?

This is a debate France will now have.

It has gone farther than even the U.S. did after 9/11 in terms of setting up a surveillance net to capture elements of indigenous extremism. Wearing certain clothing in public is now prohibited by federal law, as are certain religious ceremonies. And thanks to a new law that just took effect, French intelligence agencies can now monitor domestic internet metadata in real time without warrants. Without obtaining any approval from a senior government official, they can listen to the content of calls for 48 hours. (In the United States, emergency content collection must be approved by the Attorney General).

In France, DCPI can run the names of citizens through intelligence databases if they cite national security reasons. They can quietly track calls made to and from phone towers near heavily protected French government buildings. According to the law, passed in late 2013, they can ask banks for account information, using request forms similar to National Security Letters sent by America's FBI. According to the Guardian, Microsoft, Google and other internet service providers opposed the law, saying it would allow the government to collect too much data.

Like other European capitals, Paris has closed-circuit camera systems that watch over major thoroughfares. Until 2008, city police watched only their metro system this closely, but since then, they've added hundreds of cameras to public areas, largely without protest.

According to the police, the cameras' digital feeds are recorded on servers — about 30 days' worth is stored at any given time — that allow investigators to rewind and stitch together different views, helping them retrace the movements of suspects. The pictures are not high resolution — and they're generally not admissible in court — but they're detailed enough to identify and analyze.

France was also one of the first European states to make use of automatic license plate recording devices fed from traffic cameras. At regular intervals, software connected to the closed-circuit systems record the license plates of any visible cars. If the French system works like most others, police store millions of still photographs, and software picks out license plate details and records them in a separate and dynamic database. Police can then order up a list of every license plate the cameras caught passing through any intersection the system happened to be recording. Still, it's cell phone surveillance that is probably the French government's most potent tool.

At the height of Snowden-mania in 2013, leading french newspaper Le Monde reported that the National Security Agency had collected metadata from 70 million French phone transactions. The French press was outraged; the French government sent a formal protest to the United States, and its ambassador to the U.S. was called upon for an explanation. But it was all a show: The French had collected that data and provided it to the NSA for processing and analysis.

The two spy agencies work closely together to monitor the communication of radical Islamists who travel to and from the country, who use jihadist websites to recruit soldiers and sympathizers from the French banlieues.

These suspects eluded them. They hadn't done anything to warrant arrest under French law. There is no way to really know, ahead of time, who will snap, or who won't.

So they were free. It is much easier to be bad in a free country than it is in a dictatorship.