Privacy First New Year’s column
Looking back on 2016, Privacy First perceives a renewed attack on our democratic constitutional State from within. Incident-driven politics based on the everyday humdrum prevails and the Dutch government’s frenzy efforts to control the masses is relentless, arrogant and driven by industry and political lobbying. The democratic principles of our constitutional State are being lost out of sight ever more while the reversion of legal principles has become commonplace. Every (potential) attack thus becomes an attack on our civil rights.
Current constitutional State unable to defend itself
Barely a single day has gone past in the current mediacracy and governors without any historical or cultural awareness hand us, our children and our future over to a new electronic dictatorship fenced off by 4G masts. Citizens who autonomously seek to inform themselves have become ‘populists that spread fake news’. It’s not just the government that has lost its way, but so have the mainstream media, so it seems. The model characterized by fear, hate and control adopted by many authoritarian states headed by a strong leader is increasingly seen as the way to go.
Privacy First has said it before but will reiterate: we are of the opinion that State terrorists who continuously change legislation restricting civil liberties are ultimately much more harmful to our society than a single ‘street terrorist’, however terrible and shocking an attack is for those directly involved. The galling thing is that our constitutional State cannot adequately defend itself against the erosion of democratic principles from within: among other things, there is a lack of independent review of our Constitution. Therefore we are very happy that the European Court of Justice has recently ruled all forms of trawl net technology unlawful in advance. A great verdict that has far-reaching consequences for the State terrorists among our politicians and civil servants. A clear line in the sand.
Our democratic constitutional State came into existence out of the 19th century way of thinking and will have to be reshaped through a public debate, provided this is done taking into account the basic principles of living together - a human experience that goes back thousands of years. Love, trust en freedom are fundamental pillars. Privacy First discerns a number of changes over the past 150 years to which our constitutional State has no adequate answer, if any answer at all. These changes will have to be integrated into a newly structured democratic constitutional State which will have to be partly parliamentary and partly shared. In other words: the democratic foundation is there, but will have to be adapted to the desires and developments of our time.
Towards a Shared Democracy: adjusting parliamentary democracy to our present time
Privacy First calls on (and challenges, if necessary) every Dutch citizen to participate in a broad public discussion in order to shape a democracy 3.0. After Athens (1.0) and our parliamentary democracy from the 19th century onwards (2.0), in our eyes it’s time for the concept of a Shared Democracy (3.0), which is both a disruptive way of thinking as well as a social model for which we identify seven big drivers that help adjust our current 19th century system. Privacy First notices that these seven drivers are currently undermining our model from the inside and the outside. But by thinking differently, one will find that these pillars also offer an opportunity to move towards a new form for the future: the so-called Shared Democracy.
1. Changing role of the media; towards a mediacracy
Originally, in the 19th century model, the media didn’t yet have the scale and level of outreach today’s media have. The influence of the media has become large to the extent it will have to be one of the pillars of the future Shared Democracy.
2. Changing role of citizens
The enormous financial and social emancipation, the elevated level of education and the individualization of citizens is currently leading to huge tensions in the democracy of parliamentary representation. As part of the old way of thinking, citizens are still regarded as an unassertive, inferior, necessary evil. However, citizens want to have decision-making power on numerous issues and this – supported by the newest technologies and means of communication - will have to be structurally implemented in the Shared Democracy on the basis of various structures of representation and participatory leadership based on personal responsibility, an area in which politics and the government are still falling far behind in their relationship with citizens.
3. Scientific, technological and information revolution
These revolutions create new opportunities and offer an almost real-time insight in the developments and events within society. Moreover, the internet and associated infrastructures enable completely new forms of exchange and marketplaces of ideas and decisions. This happens on a worldwide scale between like-minded people and people who hold different views. Where supply and demand are ill-aligned, new services that have a disruptive effect on old structures pop up. Think of the clear imbalance between citizens and politics. A solution for that problem can be found in completely new and invigorating systems and structures, set up with an open and free attitude, with privacy by design enshrined in legislation and with the application of advanced technology - all elements that distinguishes the Shared Democracy.
4. Unrestrained proliferation of public authorities
The house is ready to move into, but the contractor keeps coming back every day to see whether there are still tasks to be done... likewise our government exerts its influence on our daily life and on today’s economy. The unrestrained proliferation of public authorities has got to stop immediately and the government has to be brought back to normal proportions, in line with a standard that has yet to be established. By now, citizens serve the government instead of the other way around. The power of (central) public authorities is no longer commensurate with those of individual citizens. A key trait of the Shared Democracy will be the size, power and scope of the government.
5. Lifelong professional politicians
Another thing the founders of the 19th century model didn’t take into account (despite the seperation of powers) is the fact that many current (national) representatives are fulltime politicians, some of whom carry out public sector activities quite directly related to their political function. Particularly these latter ones have lost all connection to society and virtually live off taxpayers’ money without any risks. In the Shared Democracy we envisage, we advocate that representatives of citizens make clear choices and are in favour of all possible mixed forms of citizens and representatives in order to create a much larger engagement and responsibility among individual citizens when it comes to being active politically.
6. Financial sector, upscaling and mass control
The centralization and management of financial flows disconnected from the underlying value, erodes both the economy and society. The human dimension is disappearing into the background in upscaling and efficiency models dominated by financial flows. By introducing mantras such as ‘cash is criminal’, paying anonymously is being phased out while bank runs that could endanger and destabilize the system are being prevented. Here too, the web continually gets tighter around citizens and money no longer belongs to them, but to banks and the government. With a view to the future and on the basis of current and future technological possibilities, in the Shared Democracy, ownership relationships and the right to anonymous means of payment will have to be firmly embedded in law.
7. Supranational elite of individuals and companies
One of the effects of globalization is the rise of a large group of supranational companies and individuals that are disconnected from their nation-states and societies, benefitting from the rights they have but not fulfilling the duties that society equally brings along. Now that information and power are concentrated within a few very large, global conglomerates, there are many financial corporations and companies that have become larger than nation-states. The intransparent power of lobbygroups backing these conglomerates thrives under the old, authoritarian pyramid structure of centralized political representation. In the Shared Democracy, special attention will have to go out to democratic shaping and modelling on all levels, while the centralized and decentralized power structures have to be continually in balance and be measurable with the most advanced technology.
How will the Shared Democracy deal with all this? How much more freedom are we prepared to give up for the sake of (false) security? 100% security = 0% freedom. How are we going to restructure our society and democratic system in order to hold on to our principles with the seven drivers of development in mind? And on which scale are we willing to do so?
To better define these questions and look for answers, Privacy First will organize a New Year's Reception on 19 January 2017, at 7:30 pm in the Volkshotel in Amsterdam. The reception (in Dutch) will revolve around the Shared Democracy.
Privacy First encourages everyone to contribute to this new movement towards a Shared Democracy in an open and free debate on all available communication channels!
Privacy First Foundation chairman
In the Dutch Citizens v. Plasterk case about the international exchange of data between secret services, the coalition of citizens and organizations (including Privacy First) has explained its appeal before the Hague Court of Appeals. In its statement of appeal, which was submitted to the Court on 2 February 2016, the coalition details why the ruling of the district court of The Hague (in Dutch) is wrong.
In summary, the district court of the Hague has ruled that the collaboration and exchange of data on the basis of trust between Dutch secret services and foreign secret services (among which the American NSA) may simply be continued. According to the judge, the importance of national security is the determining factor, thereby essentially giving the Dutch AIVD (general intelligence and security service) and MIVD (military intelligence and security service) carte blanche to collect bulk data of Dutch citizens via foreign intelligence agencies without any legal protection, only because of the designation ‘national security’.
The Citizens v. Plasterk coalition deems this ruling to be in flagrant breach of the right to privacy and has lodged an appeal. It must be noted that the coalition isn’t seeking to ban the collaboration with foreign services as such. However, we find that when it comes to collaborating and receiving data, strict safeguards should be maintained. Failure to do so means that data that has been obtained by the NSA and other intelligence services in violation of Dutch law, illegally end up in the hands of Dutch intelligence services. This comes down to the laundering of data through an illegitimate U-turn.
"By using NSA data, minister Plasterk and his services are laundering illegally obtained data. This case should put an end to that", says our lawyer Christiaan Alberdingk Thijm of bureau Brandeis. Read our entire statement of appeal HERE (pdf in Dutch).
The Dutch government will first have to react to our statement of appeal in a statement of defence on appeal, after which the Hague Court of Appeals will schedule a hearing and render a ruling.
Meanwhile, our coalition has been admitted to intervene in the legal proceedings against the British government that the British organization Big Brother Watch et al. have brought before the European Court of Human Rights (ECtHR). This is a significant development because as a result, the ECtHR may, at an early stage, be able to issue a verdict that is relevant to our Dutch case. Click HERE (pdf) for the recent decision on admissibility by the European Court and HERE for more information about the British case on the Court's website.
The Citizens v. Plasterk case
At the end of 2013, the Citizens v. Plasterk coalition summoned the Dutch government, represented by the Dutch minister of the Interior, Ronald Plasterk. This was prompted by Edward Snowden’s revelations about the practices of (foreign) intelligence services. The coalition demands that the Netherlands stops using data that have been obtained in violation of Dutch law.
In February 2014 the case almost led to minister Plasterk’s withdrawal from office. It had emerged that Plasterk had wrongfully informed the Dutch House of Representatives on the exchange of data between Dutch and foreign intelligence services. The Dutch services had passed on 1.8 million items of data to the Americans and not the other way around, as he had previously claimed.
In July 2014 the district court of The Hague rejected the claims of the coalition, after which the coalition lodged an appeal before the Hague Court of Appeals.
At the end of 2015 it became known that the coalition may participate in a British lawsuit before the European Court of Human Rights in Strasbourg.
The participating citizens in the coalition are: Rop Gonggrijp, Jeroen van Beek, Bart Nooitgedagt, Brenno de Winter and Mathieu Paapst. The participating organizations are: the Privacy First Foundation, the Dutch Association of Defence Counsel (NVSA), the Dutch Association of Journalists (NVJ) and Internet Society Netherlands.
The case is taken care of by bureau Brandeis, in particular by our lawyers Christiaan Alberdingk Thijm and Caroline de Vries, who make use of the bureau Brandeis’s pro-bono fund.
Update 9 February, 2016: today the coalition submitted its written submissions to the European Court of Human Rights, click HERE (pdf).
Christmas column by Bas Filippini,
Chairman of the Privacy First Foundation
Principles of our democratic constitutional State are still very relevant
‘‘Your choice in a free society’’ is the slogan of the Privacy First Foundation. Privacy First has defined its principles on the basis of universal human rights and our Dutch Constitution and is reputed for professional and, if necessary, legal action in line with our free constitutional State. The mere fact that Privacy First exists, means that in recent years the aforementioned principles have come under increasing pressure. We base our (legal) actions and judgements on thorough fact-finding, to the extent possible in our working area.
‘The Netherlands as a secure global pioneer in the field of privacy’, that’s our motto. This country should also serve as an example of how to use technology whilst maintaining the principles of our open and free society. This can be achieved through legislative, executive and IT infrastructures, starting from privacy by design and making use of privacy enhanced technology.
Whereas the industrial revolution has environmental pollution as a negative side effect, the information revolution has the ‘pollution of privacy and freedom’ as an unwanted side effect.
Therefore, the question is how to preserve the basic principles of our democratic constitutional State and how to support new structures and services towards the future. As far as we’re concerned, these basic principles are neither negotiable nor exchangeable. Yet time and again we see the same incident-driven politics based on the misconceptions of the day strike at times when the constitutional State is at its most vulnerable and cannot defend itself against the emotional tide of the moment.
Paris as yet another excuse to pull through ‘new’ laws
Various politicians feed on the attacks in Paris and tumble over one another to express Orwellian macho talk, taking things further and further in legislative proposals or in emotional speeches characterized by belligerence and rhetoric. And it’s always so predictable: further restraining existing freedoms of all citizens instead of focusing further on the group of adolescents (on average, terrorist attackers are between 18 and 30 years old) that intelligence agencies already have in sight. Instead of having a discussion about how intelligence agencies can more effectively tackle the already defined group that needs to be monitored and take preventive measures in the communication with and education of this target group, the focus too easily shifts to familiar affairs whereby necessity, proportionality and subsidiarity are hard to find.
So in the meanwhile we’ve witnessed the prolonged state of emergency in France, the far reaching extension of powers of the police, the judiciary and intelligence services (also to the detriment of innocent citizens), extra controls in public space, the retention of passenger data, etc., etc. All this apparently for legitimate reasons in the heat of the moment, but it will be disastrous for our freedom both in the short as well as in the long run. In this respect the blurring definition of the term ‘terrorism’ is striking. Privacy First focuses on government powers in relation to the presumption of innocence that citizens have. We’re in favour of applying special powers in dealing with citizens who are under reasonable suspicion of criminal offences and violate the rights of others with their hate and violence. In fact, that’s exactly what the law says. Let’s first implement this properly, instead of introducing legislative proposals that throw out the baby with the bathwater.
The governments is committed to impossible 100 per cent security solutions
What often strikes me in conversations with civil servants is the idea that the government should provide 100 per cent solutions for citizens and applies a risk exclusion principle. This leads to a great deal of compartmentalization and paralyzation when it comes to possible government solutions in the area of security. Technology-based quick fixes are adhered to by default, without properly analyzing the cause of problems and looking at the implementation of existing legislation.
The government way of thinking is separate from citizens, who are not trusted in having legal capacity and are regarded as a necessary evil, as troublesome and as inconvenient in the performance of the government’s tasks. The idea that the government, serving its citizens, should offer as high a percentage as possible but certainly not a 100 per cent security (the final 10 per cent are very costly on the one hand and suffocating for society on the other) is not commonly shared. No civil servant and no politician is prepared to introduce policies to maintain an open society today (and 50 years from now) that entail any risk factors. However, in reality there will always be risks in an open society and it should be noted that a society is not a matter of course but something we should treat with great care.
Here in the Netherlands we’ve seen other forms of government before: from rule by royal decree to a bourgeoisie society and an actual war dictatorship. Every time we chose not to like these forms of society. What could possibly be a reason to be willing to go back to any of these forms and give up our freedoms instead of increasing them and enforcing them with technology? Especially in a society that has high levels of education and wherein citizens show to be perfectly able to take their own decisions on various issues. We hire the government and politics as our representatives, not the other way around. However, we’re now put up with a government that doesn’t trust us, is only prepared to deliver information on the basis of FOIA requests and requires us to hand over all information and communications about us and our deepest private lives as if we were prima facie suspects. That puts everything back to front and to me it embodies a one way trip to North Korea. You’ll be more than welcome there!
Political lobby of the industry
The industry’s persistence to overload the government and citizens with ICT solutions is unprecedented. Again and again here in the Netherlands and in Silicon Valley the same companies pop up that want to secure their Christmas bonus by marketing their products in exchange for our freedom. We’re talking about various electronic health records like the Child record and the Orwellian and centralized electronic patient record, the all-encompassing System Risk-Indication database, travel and residency records, road pricing, chips in number plates and cars, so-called automated guided vehicles (including illegal data collection by car manufacturers), number plate parking, automatic number plate recognition cameras, facial recognition in public space and counter-hacking by government agencies while voting computers are back on the agenda. Big Data, the Internet of things, the list goes on.
With huge budgets these companies promote these allegedly smart solutions, without caring about their dangers for our freedom. It’s alienating to see that the reversal of legal principles is creeping in and is being supported by various government and industry mantras. It’s as if a parasitic wasp erodes civil liberties: the outside looks intact but the inside is already empty and rotten.
From street terrorism to State terrorism
As indicated above, the information revolution leads to the restriction of freedom. It’s imperative to realize that after 4000 years of struggle, development and evolution we have come to our refined form of society and principles that are (relatively) universal for every free citizen. Just as most of us are born out of love, freedom and trust, to me these are also the best principles with which to build a society. We’re all too familiar with societies founded on hate, fear and government control and we have renounced them not so long ago as disastrous and exceptionally unpleasant. At the expense of many sacrifices and lives these principles have been enshrined in treaties, charters and constitutions and are therefore non-negotiable.
It’s high time to continue to act on the basis of these principles and make policy implementation and technology subordinate to this, taking into account the people’s needs and their own responsibility. In my eyes, a civil servant in the service of the people who places security above everything else, is nothing more than a State terrorist or a white collar terrorist who in the long term causes much more damage to our constitutional State and freedom than a so called street terrorist. The government and industry should have an immediate integrity discussion about this, after which clear codes can be introduced for privacy-sustainable governing and entrepreneurship.
Towards a secure global pioneer in the field of privacy
Privacy First would like to see government and industry take their own responsibility in protecting and promoting the personal freedom of citizens and in so doing use a 80/20 rule as far as security is concerned. By focusing on risk groups a lot of money and misery can be saved. Exceptions prove the rule, which in this case is a free and democratic constitutional State and not the other way around. Say yes to a free and secure Netherlands as a global pioneer in the field of privacy!
By now basically everyone is aware of the far-reaching eavesdropping practices by the American National Security Agency (NSA). For years the NSA has been secretly eavesdropping on millions of people around the world, varying from ordinary citizens to journalists, politicians, attorneys, judges, scientists, CEOs, diplomats and even presidents and heads of State. In doing so, the NSA has completely ignored the territorial borders and laws of other countries, as we have learned from the revelations by Edward Snowden in the PRISM scandal. Instead of calling the Americans to order, secret services in other countries appear to be all too eager to make use of the intelligence that the NSA has unlawfully obtained. In this way national, European and international legislation that should safeguard citizens against such practices is being violated in two ways: on the one hand by foreign secret services such as the NSA that collect intelligence unlawfully, and on the other hand by secret services in other countries that subsequently use this intelligence. This constitutes an immediate threat to everyone’s privacy and to the proper functioning of every democratic constitutional State. This is also the case in the Netherlands, where neither the national Parliament nor the responsible minister (Mr. Ronald Plasterk, Home Affairs) has so far taken appropriate action. This situation cannot continue any longer. Therefore a national coalition of Dutch citizens and organizations (including the Privacy First Foundation) has today decided to take the Dutch government to court and demand that the inflow and use of illegal foreign intelligence on Dutch soil is instantly brought to a halt. Furthermore, the coalition demands that the Dutch government notifies all citizens whose personal data have been illegally obtained. These data must also be deleted.
These legal proceedings by the Privacy First Foundation primarily serve the general interest and aim to restore the right to privacy of every citizen in the Netherlands. The lawsuit is conducted by bureau Brandeis; this law firm also represents Privacy First and 19 co-plaintiffs (Dutch citizens) in our Passport Trial against the Dutch government. Privacy First is confident it will soon have positive outcomes in both of these cases.
Click HERE to read the subpoena as it was presented to minister Plasterk today. (Dutch only)
Apart from Privacy First, the coalition of plaintiff parties consists of the following organizations and citizens:
- The Dutch Association of Defence Counsel (Nederlandse Vereniging van Strafrechtadvocaten, NVSA)
- The Dutch Association of Journalists (Nederlandse Vereniging van Journalisten, NVJ)
- The Dutch chapter of the Internet Society (ISOC.nl)
- Jeroen van Beek
- Rop Gonggrijp
- Bart Nooitgedagt (represented by the NVSA)
- Matthieu Paapst (represented by ISOC.nl)
- Brenno de Winter (represented by the NVJ).
Update 5 February 2014: today the Dutch government (Ministries of Home Affairs and Defence) has responded to the subpoena in a comprehensive statement of defence; click HERE for the entire document (pdf; MIRROR) and HERE for the press release by our attorneys of bureau Brandeis (in Dutch). It is remarkable that the State Attorney only deems the Privacy First Foundation admissible (see p. 31). This means that Privacy First is only one step away from standing before the judges of the district court of The Hague. This development is also of great importance for our Passport Trial, in which that same court at an earlier stage deemed Privacy First et al. inadmissible. The Hague Court of Appeal is currently looking into this legal issue once more. In the point of view of Privacy First, the court should declare all plaintiffs (citizens and organizations) admissible in both the court case concerning the NSA as well as our lawsuit regarding the Dutch biometric passport.
The Dutch Ministry of the Interior is currently conducting an assessment of the fundamental rights situation in the Netherlands. Later this year this will probably result in a report called ‘De Staat van de Grondrechten’ (‘The State of Fundamental Rights’) and an accessory entitled ‘Nationaal Actieplan Mensenrechten’ (‘National Human Rights Action Plan’). In this context the Ministry recently requested input from several NGOs, among which Privacy First. Below is our advice:
Top 7 of issues that deserve a place in the State of Fundamental Rights and the National Human Rights Action Plan:
1. Active adherence to as well as protection, fulfilment and promotion of the right to privacy
Clarification: privacy is both a Dutch constitutional right as well as a universal human right. As with all human rights, the Dutch government accordingly has the obligation to 1) respect, 2) protect, 3) fulfil and 4) promote the right to privacy through proper legislation and policy. However, since '9/11' there have almost solely been made restrictions to the right to privacy, instead of enhancements of it. This constitutes a violation of the above-mentioned general duty to actively fulfil the right to privacy. The same goes for related rights and principles such as the presumption of innocence and the ban on self-incrimination (nemo tenetur).
2. Constitutional review
Clarification: the Netherlands is only familiar with constitutional ‘‘review’’ by civil servants and members of the Dutch House of Representatives when it comes to the development of new legislation. Unfortunately there is no Dutch Constitutional Court and, oddly enough, constitutional review of formal legislation by the judiciary is outlawed in the Netherlands. It is partly on account of this that the Dutch Constitution has become a dead letter over the last decades. It is therefore recommended to create a Constitutional Court as soon as possible and to abrogate the ban on constitutional review.
3. Collective legal means
Clarification: owing to a development of legal restrictions within the case law of the Dutch Supreme Court, over the last decades it has become increasingly difficult for foundations and associations to legally defend the social interests they advocate for through the collective right to action (Article 3:305a Dutch Civil Code and Article 1:2 paragraph 3 Dutch General Administrative Law Act, both links are in Dutch). Because of this the effective and efficient functioning of the Dutch constitutional State and legal economy have come under severe pressure. It is therefore recommended for the government to actively respect, protect and fulfil the collective right to action. For instance by no longer instructing the State attorney to plea for the inadmissability of foundations and associations in relevant lawsuits. Moreover, the ban on direct appeal against generally binding regulations (Article 8:3 Dutch General Administrative Law Act, in Dutch) is to be abrogated.
4. Voluntary instead of compulsory biometrics
Clarification: the premise in a healthy democracy under the Rule of Law should be that citizens may never be obliged to cede their unique physical characteristics (biometric personal data) to the government or the business sector. After all, this constitutes a violation of the right to privacy and physical integrity. Moreover, within companies, service providers, employers, etc. this leads to unfair trading practices. With the planned introduction of an ID card without fingerprints, in this area the Dutch government is taking a first step in the right direction. In line with this, we advise the Dutch government to plea at the European level for a passport with voluntary instead of compulsory taking of fingerprints.
5. Anonimity in public space
Clarification: the right to be able to travel anonymously and not to be spied upon has become increasingly illusory in recent years, especially through technological developments such as public transport chip cards, camera surveillance, cell phone tracking, etc. Both the government as well as the business sector are obliged to actively reinstate, protect and fulfil the right to privacy in terms of anonymity in public space through the introduction of public transport chip cards that are truly anonymous (privacy by design), the abrogation of camera surveillance unless strictly necessary, the development of privacy-friendly mobile telephony and apps, etc. For all the legislation and policies in this field, privacy, individual freedom of choice, necessity, proportionality and subsidiarity are to be leading principles.
6. Privacy by design
Clarification: all privacy-sensitive information technology is to comply with the highest standards of privacy by design. This can be achieved through the use of privacy enhancing technologies (PET), among which are state-of-the-art encryption and compartmentalization instead of centralization and the coupling of ICT. At the European level this is to become a strict legal duty for governments as well as the business sector, with active supervision and enforcement in this area.
7. Privacy education
Clarification: in terms of human rights education the Netherlands is threatening to become a third world country. In the long run this puts the continued existence of our democratic constitutional State at stake. It equally puts the right to privacy in danger. A privacy-friendly future begins with the youth of today. To that end privacy education is to become compulsory in primary, secondary and higher education. The government should play an active role in this.
Earlier this year the Dutch Minister of Justice and Security Ivo Opstelten came up with the miserable plan to authorize the Dutch police force to hack into your computer (both at home and abroad!) and to enable the police to demand that you decrypt your encrypted files in the presence of a policeman and obediently hand them over to the State. In the context of an online consultation (in Dutch), Privacy First notified to the Minister that it has a number of principal objections against his plans:
The Privacy First Foundation hereby advises you to withdraw the legislative proposal ‘enforcement of the fight against cybercrime’ on the basis of the following eleven principal grounds:
- In our view, this legislative proposal forms a typical building block for a police State, not for a democratic constitutional State based on freedom and trust.
- The Netherlands has a general human rights duty to continuously fulfil the right to privacy instead of restricting it. With this legislative proposal the Netherlands violates this general duty.
- This legislative proposal is not strictly necessary (contrary to possibly being ‘useful’ or 'handy') in a democratic society. Therefore the legislative proposal is in breach of Article 8 of the European Convention on Human Rights.
- Moreover, this legislative proposal violates the prohibition of self-incrimination (nemo tenetur se ipsum accusare).
- Function creep is a universal phenomenon. This will also apply to this legislative proposal, which will form the basis for future abuse of power.
- This legislative proposal puts the relationship of trust between the Dutch government and the Dutch people to the test. This will lead to a chilling effect in Dutch society.
- Through this legislative proposal age-old assets such as freedom of the press and the protection of journalistic sources, whistleblowers, freedom of speech, free information gathering, freedom of communication and the right to a fair trial are put under severe pressure. This is detrimental to the dynamics within a free democratic constitutional State.
- This legislative proposal and the accompanying technology will be imported and abused by less democratic governments abroad. Therefore the legislative proposal forms an international precedent for a worldwide Rule of the Jungle instead of the Rule of Law.
- As of yet the legislative proposal lacks a thorough and independent Privacy Impact Assessment.
- This legislative proposal stimulates suboptimal (i.e. crackable by the government, because otherwise illegal?) instead of optimal (‘uncrackable’) ICT security.
- Fighting cybercrime demands multilateral cooperation and coordination instead of unilateral panic-mongering as is the case with this legislative proposal.
The Privacy First Foundation
As of 2 October 2012, the new Dutch National Human Rights Institute (College voor de Rechten van de Mens, CRM) will open its doors. Recently the Institute under formation established the essential pillars of its policy for the coming years, namely 1) care for the elderly, 2) immigrants and 3) discrimination on the labor market. However, of all human rights, in recent years the right to privacy is worst off in the Netherlands. Contrary to the above mentioned pillars (that concern vulnerable groups of people), the right to privacy appertains to anyone who finds him or herself on Dutch soil. In essence this has turned the entire Dutch population into a vulnerable group, especially in comparison to the situation in other countries where the protection of privacy is much better regulated. A few years ago the right to privacy was even about to become a complete illusion in the Netherlands. In May 2009 this state of affairs led to the foundation of the Dutch Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten) in which various non-governmental organisations (NGOs) have joined forces. This week the Platform sent the below appeal (co-authored and signed by Privacy First) to the chairman of the future National Human Rights Institute, Laurien Koster:
Dear Ms. Koster,
Today, of all human rights, the right to privacy finds itself under the most pressure. Therefore, it is with concern that the Platform for the Protection of Civil Rights recently took note of the three essential pillars of the National Human Rights Institute for the coming years, namely 1) care for the elderly, 2) immigrants and 3) discrimination on the labor market. Not willing to take anything away from the social importance of these three pillars, in this letter we ask you to still consider adopting privacy as one of the pillars of your Institute.
In recent years, there seems to be the tendency in the Netherlands to confront every social problem with a standard formula, that is say, more digital registration, more linkage of files, opening up systems and central databases that become accessible to ever more officials and third parties, restriction of professional autonomy, preventive controls and profiling. It seems as if people, especially politicians, influenced as they are by the media and the vox populi – which in turn is affected by the media – think that these instruments exert a certain control over society that should lead to more order, tranquillity and security. In our opinion the opposite effect is increasingly the case. After all, digitalization implies that the quantity of data that is stored of every citizen becomes ever greater and less clear and less controllable. This especially applies to data that have been inserted or linked up erroneously or that are obsolete. The exponential growth of digital registrations sees a dramatic increase in risks of data leakages while new forms of identity fraud and identity theft arise. This means that the insecurity of digital systems becomes a direct threat to citizens. Furthermore, there’s a risk that citizens become their own digital ‘doubles’ through digital profiling. This implies that the autonomy of the free citizen who participates in society – a characteristic so very important in a democratic constitutional State – is seriously put at stake.
Going back to a society without the Internet or digital files is by no means what we advocate for (if it were possible anyway). However, a sensible use of technological means, among which data storage, biometrics and other such technological assets, will be necessary to retain our democratic constitutional State and affiliated fundamental rights. Particularly in these times of unforeseen technological possibilities we should once more realize how important the fundamental principles of our society are. Therefore, it should every time be assessed what is within the boundaries of acceptability and to what extent possible alternatives on a human scale, such as personal contact but also assistance and service, are desirable or necessary.
Privacy constitutes the basis of our democratic constitutional State. Without privacy many other human rights are at issue, among which are the right to confidential communication and freedom of speech, non-discrimination, freedom of movement, association and assembly, demonstration, culture and religion, press freedom as well as the right to a fair trial. Apart from that we observe that in the Netherlands the right to privacy can only rely on patchy protection by government supervision, that is to say, it only concerns the protection of personal data. As far as the protection of personal privacy in the broadest sense of the word is concerned (and this includes the inviolability of the home and the right to physical integrity) there is hardly any government supervision. Moreover, with regard to the realization and compliance to as well as the protection and promotion of the right to privacy in conjunction with other human rights, government supervision is lacking altogether. It is especially in these areas that your Institute has added value and can help overcome the ‘human rights gap’ that has come into existence in the Netherlands in recent decades.
We hope that your Institute will still make the right to privacy one of its policy pillars. If you wish, the organizations that together form the Platform for the Protection of Civil Rights are happy to supply you with information and advice.
On behalf of the participants of the Platform for the Protection of Civil Rights I remain respectfully yours.
chairman of the Platform for the Protection of Civil Rights
On behalf of the Platform participants:
Humanistisch Verbond (Humanist Association)
Stichting KDVP (KDVP Foundation; Dome of DBC Free Practices)
Stichting Meldpunt Misbruik ID-plicht (Contact Point on Abuse of Mandatory Identification)
Ouders Online (Parents Online)
Stichting Privacy First (Privacy First Foundation)
Burgerrechtenvereniging Vrijbit (Civil rights society Vrijbit)
Jacques Barth (on behalf of Stichting Brein en Hart i.o. (Brain and Heart Foundation under formation)
Joyce Hes (advisor to the Platform for the Protection of Civil Rights)
Kaspar Mengelberg (on behalf of DeVrijePsych (The Free Psychiatrist))
A pdf version of this letter can be found HERE (in Dutch)
Update: in a written reply (pdf) the Institute under formation notifies that in the Netherlands there is indeed ‘‘still a lot to be done to safeguard the right to privacy’’. The Institute also acknowledges the limited mandate of the Dutch Data Protection Authority (College Bescherming Persoonsgegevens). However, for the time being the Institute sticks to its intended strategic agenda. Nevertheless, in the future (also the coming three years) the Institute ‘‘can’t and won’t distance itself from problems when realizing the right to privacy’’. Privacy First will be eager to remind the Institute of this in urgent cases.
The Privacy First Foundation regularly organises networking drinks combined with informational sessions for our volunteers, donors and experts from our network of journalists, scientists, jurists and people working in ICT. Since July 2011, these events are organised about every three months and take place at the Privacy First office in the former building of de Volkskrant newspaper in
A common goal: freedom in an open democratic society
The night starts with a short introduction by Privacy First chairman Bas Filippini. In Filippini’s view, Privacy First and the AIVD actually pursue the same objective, namely freedom in an open democratic society, albeit from different perspectives. Rob Bertholee affirms this and says that tonight, contrary to what some may think, he doesn't really consider himself to be in the lion’s den. After a long career in the army, Bertholee has been the Head of the AIVD for nine months now. One of his first impressions of the AIVD was one of a professional organisation with people who are driven by their ideals, he says. Both the AIVD and the MIVD (military intelligence) have to deal with risks and threats to national security and the democratic legal order, in other words, with threats to our way of life and the guarantees for our freedoms thereof. As a result of internationalisation and new technologies, threats and risks increase in number and have a greater impact and reach. An example is the internet that, apart from its positive aspects, has a downside to it as well.
Security is not a fundamental right
The AIVD has two main tasks: intelligence and security. Formally however, security is not a fundamental right, Bertholee rightly remarks. In its case-law, the European Court of Human Rights has indicated that States are obliged to take all reasonable measures against life-threatening situations, he says. Subsequently, the Council of Europe has endorsed this in its Guidelines on human rights and the fight against terrorism. Whereas Privacy First focuses on the protection of the individual, the AIVD concentrates on the protection of the community of individuals. In between there’s a trade-off: in order to protect the community, sometimes it is necessary to infringe the rights of the individual. Bertholee then mentions a couple of tasks of the AIVD which do not infringe the right to privacy. This is the case for 1) personal security assessment and 2) protective measures for individuals, organisations and companies, for example in relation to espionage. In these two cases the law dictates that the AIVD is, by law, not allowed to deploy special intelligence powers. It is exactly the deployment of such powers that infringes people's privacy.
An important part of the AIVD is the National Communications Security Agency (Nationaal Bureau voor Verbindingsbeveiliging, NBV) which supports the Dutch central government in securing special information. The NBV evaluates security products and plays a role in their development. It is this agency where, for example, USB flash drives for the government are tested on data leakages. Then there’s the political intelligence task of the AIVD abroad, "which, admittedly, intrudes upon people's privacy, but not here in this country". Finally, there’s the task of making threat analyses for certain individuals (for example politicians), organisations or events. One task of the AIVD through which privacy in the Netherlands is put at stake concerns the assessment of ‘threats to our national security, the continuation of democratic rule of law and other, important State interests". This assessment is carried out, first of all, through open sources (media, internet, etc.), but can (subsequently) proceed by shadowing, monitoring or eavesdropping of persons or by penetrating virtual or physical spaces. In this respect Bertholee emphasizes the high degree to which employees of the AIVD are aware of 'the spirit' of the Dutch Intelligence and Security Services Act 2002 (Wet op de inlichtingen- en veiligheidsdiensten, Wiv2002). "As a citizen I felt reasonably reassured from the moment I had an understanding of what the AIVD was actually doing and what it could and was allowed to do, and also by the way the government can continue to exercise control over a service like the AIVD," says Bertholee. "You don't have to believe me, but I just wanted to share this with you," he jokes. Then he’s resolute again in saying "our tasks and powers are all clearly defined by law."
In the field of counter-terrorism, at the moment most of the AIVD’s attention goes out to (potential) Jihadists and radical 'lone wolves' like Anders Breivik. Bertholee finds it worrisome that such lone wolves are hard to track down, even though relevant information is sometimes available, for example at healthcare institutions or the police. A difficult dilemma is, on the one hand, the question whether or not certain events could have been prevented by correlating information on national and international levels and, on the other, which risks society is willing to take in order to preserve people's privacy, Bertholee explains. However, he can well imagine that citizens worry about the correlation and international exchange of data and that this is bringing about a 'Big Brother' experience. As a citizen, Bertholee himself is worried about this too. Where is the right balance between protecting the individual and protecting the community? Every special power of the AIVD is anchored in the Wiv2002. The most simple special power is talking to people (Article 17 Wiv2002). For every single special power in the Wiv2002 the following requirements apply: 1) necessity, 2), proportionality and 3) subsidiarity. Therefore, special powers may only be deployed in case open sources (internet etc.) prove to be insufficient. The AIVD is to continually ask itself: is it strictly necessary? And are we very certain that there are no lighter measures at our disposal? The enforcement of those very powers is verifiable afterwards. Apart from opening letters (this falls under the Dutch Postal Act) there is no investigative magistrate involved. However, for the use of every special intelligence power the approval by the Minister of the Interior and Kingdom Relations or by the Head of the AIVD on behalf of the Minister is required. Moreover, every new employee of the AIVD gets a basic education through which he or she is being taught, among other things, about the Wiv2002. In this context, Bertholee relates an interesting anecdote: once in a while the AIVD invites a number of journalists, members of Parliament or jurists to discuss a case. It turns out that those not working for the AIVD are more inclined to allow the use of special powers than the AIVD employees themselves. As an answer to a question from the audience, Bertholee says that he himself gave an explanation about the Wiv2002 to Interior Minister Liesbeth Spies, just one and a half hours after she was sworn in by Queen Beatrix. "We have no rules of our own, we abide to what is written in the law," Bertholee says. He goes on telling about the process that sees the deployment of a special power: it starts with an employee who wants to use a special power for an AIVD investigation. The employee is to account for his request in writing and an AIVD operational lawyer looks into it. The request is then sent to a supervisor, after which it is forwarded to Bertholee. Finally, the request ends up at the desk of the Interior Minister. This happens case by case, always taking the prerequisites of the Wiv2002 into consideration. No form of pressure is allowed in the event the AIVD makes a request for information to citizens. The same goes for requesting information to journalists: it is entirely up to them to cooperate or not. "If a journalist is not willing to cooperate, then that’s a pity for the AIVD and that’s where things end", Bertholee explains. However, some (parts of) conversations are being registered in a memo since everything needs to be verifiable for the AIVD.
Bertholee tells about the way the AIVD is monitored by various bodies that each play their own role. First of all there’s the Dutch Parliamentary Commission for Intelligence and Security Services ('Commissie Stiekem') which consists of all the leaders of Parliamentary parties. Then there’s the (public) Parliamentary Commission for the Interior. The legality of the execution of tasks by the AIVD is scrutinised by the Dutch Review Committee on the Intelligence and Security Services (Commissie van Toezicht betreffende de Inlichtingen- en Veiligheidsdiensten, CTIVD); this is an independent supervisory body which consists mainly of legal experts. According to Bertholee, in recent years the CTIVD assessments on the AIVD have largely been positive. Furthermore, the Netherlands Court of Audit (Algemene Rekenkamer) examines the (secret) budget of the AIVD. Both the CTIVD as well as the Court of Audit have access to everything within the AIVD.
Revision of the Wiv2002
With regard to a possible revision of the Wiv2002, Bertholee remarks that the legal space currently offered is sufficient for the AIVD and that he doesn’t need more powers. However, he does think it is "particular" that the Wiv2002 is in some aspects related to the Dutch Postal Act and to the Telecom Act, which makes it necessary for the AIVD to get the permission of an investigative judge to open a letter, while that same permission is not required for intercepting or opening an email. Hence the legislation is technology-dependent and "something needs to be done about that", Bertholee states. Besides, the CTIVD has proposed to change the legislation with regard to SIGINT (Signals Intelligence). Furthermore, Parliament may evaluate the Wiv2002 in the near future. It seems there are two thorny issues at the moment: a possible ban on using journalists as informants and more control over the effectiveness of the AIVD. The difficult thing is that the effectiveness of an organisation like the AIVD is hard to measure; this is related to the nature of the work and the type of threats that are being averted. Bertholee: "I accept that life has certain risks. The question, however, is what society wants. How many casualties per year do you find acceptable?"
No Big Brother
Confronted with a question from the audience about new, predictive technologies and the effect that these can have on social behaviour, Bertholee makes clear "not to be in favour of Big Brother. There are limits to what you can and what you cannot do. This is also related to the risks that you are willing to take as a society." Bertholee responds to another question from the audience saying that a special power may only be used as long as it's necessary. When the necessity (i.e. the reason or threat) ceases to exist, the authority to use a special power ceases to exist as well. The CTIVD keeps an eye on that. Five years after a special power has been used, a duty of notification towards the citizen involved applies, unless this could reveal relevant sources or a current operational method. However, this duty to notify has so far never been used. In fact, Bertholee wonders whether such a notification could actually be experienced as an assault on one’s private life in case there was nothing going on with the person concerned.
The Wiv2002 remains applicable to the international exchange of intelligence between the AIVD and foreign secret services, Bertholee explains. Furthermore, an international code of conduct applies. The exchange of intelligence is examined from case to case and from country to country. In the event of exchange, what is allowed to happen with the intelligence in question is being indicated. Internationally this is being adhered to pretty well, according to Bertholee. However, in some cases, or rather, with some countries the exchange of intelligence could become a dilemma...
Drawing the line where violence starts
One question relates to the degree to which activists figure in AIVD files. Bertholee explains that, in principle, the AIVD conducts no investigations into activists. "We don’t care what someone thinks. We do not represent the moral high ground of the Netherlands. It is only when violence comes into play - or calls for violence, clear intentions towards violence, radicalisation - that we feel involved."
During the discussion with the audience Bertholee emphasizes that it’s not the aim of the AIVD to collect as much data as possible. The aim is rather to collect the right information in order to be able to fend off threats. It is not the AIVD, but the industry that is the driving force behind the development of information technology that, unfortunately, is also used in less democratic countries. In response to a question Bertholee admits that there is a risk that a service like the AIVD could 'drown' in an abundance of data. Biometrics are one such development of new technology. This makes it more difficult to assume a new identity, both for people with bad intentions as well as for officers of the AIVD itself. Furthermore, the privatisation of intelligence is risky, especially due to the lack of legislative checks and balances.
Bertholee finishes his speech by emphasizing once more that the AIVD 1) doesn’t keep records of everyone, 2) doesn’t wiretap everyone, 3) shoots nobody, 4) doesn’t arrest anyone, 5) doesn’t force cars into the kerb, 6) doesn’t torture anyone, 7) doesn’t hack into every computer, 8) has no enforcement powers, 9) doesn’t put pressure on people and 10) doesn’t recruit journalists. Then Privacy First chairman Filippini rounds off the night and invites everyone present for drinks with music.
Postscript Privacy First: as international peace and security often benefit from dialogue between 'opponents', the same goes in our country for a good relationship between the government and civil rights organisations like Privacy First. In that sense we consider this night to have been very valuable and we hope that the AIVD deems this event to be worth repeating in the future!
Update 27 September 2012: as a result of Bertholee's speech, a second article appeared in Dutch newspaper Telegraaf.
The Privacy First Foundation organises networking drinks on a regular basis, inviting a prominent speaker around a topical issue. In September this year we organised a night with the Head of the AIVD, the Dutch Intelligence and Security Service. On 22 October we invited a speaker from the cyber security scene, namely Wil van Gemert, Director of Cyber Security at the NCTV, the National Coordinator for Counterterrorism and Security, part of the Dutch Ministry of Security and Justice. Investigative journalist Brenno de Winter was asked to moderate the discussion. Click HERE for the invitation to our network (in Dutch). Would you also like to receive our invitations from now on? Email us! Below is a translated summary of Mr. Van Gemert's speech and the discussion with the audience that followed:
Introduction by Privacy First
Chairman Bas Filippini gives a short introduction on the work of the Privacy First Foundation and introduces Wil van Gemert as well as Brenno de Winter. Filippini recalls that the Dutch government increasingly expects citizens to do everything digitally. In particular the elderly as well as people with fundamental objections are put in difficulty by this development. Meanwhile the government attains ever more powers of surveillance in the digital private domain of citizens. A current development in this regard is the plan of Dutch Security and Justice Minister Ivo Opstelten to be able to hack into computers of citizens. Privacy First is firmly opposed to this plan because, among other things, it would violate the right to confidentiality of email. The Dutch government should safeguard the privacy of its citizens. In that sense Privacy First and the Dutch government share the same goal, albeit from different perspectives. However, Opstelten’s hacking plans threaten to break down people's privacy and (through this) democracy as a whole. Filippini then gives the floor to Wil van Gemert.
Trends in cyber security
Mr. Van Gemert thanks Privacy First for the invitation and kicks off by showing a funny commercial advertisement about linguistic confusion; click HERE. Like in the video, in cyber security it is all about trust, knowledge and awareness. Finding the right balance between tasks and responsibilities is equally important. In his lecture Van Gemert consecutively pays attention to current trends in cyber security, tasks of the government, cooperation between the public and the private sphere, the Netherlands Cyber Security Assessment (Cyber Security Beeld Nederland) and 'security versus privacy?': is this a contradiction or rather a matter of complementarity? And what are the present-day challenges? When it comes to cyber security, it all revolves around confidentiality, reliability, integrity and continuity of data in the digital information society. The first worldwide trend that Van Gemert identifies is 'Big Data': the enormous amount of data that is stored continuously and which increases on a daily basis. How can we handle this in good way? A second trend is hyperconnectivity: the number of digital (internet) connections increases exponentially. This is how an 'Internet of Things' comes to life. The Netherlands has the one but highest internet density in the world, which gives our country a special position in this regard. A third trend is the disappearance of borders, both in time and distance as well as in terms of work and the private sphere. These trends require changes both in the way companies do business as well as the role of the government in guaranteeing a secure society. These trends also have an influence on people, on consumers, for example through the new possibilities offered by mobile telephony. Big Data can be used to make highly personalised commercial offers in real time, say, a travel insurance when you're at Schiphol airport. However, when Van Gemert asks how many in the audience find this a good idea, not a single hand is raised. Van Gemert doesn't think it's a good idea himself either: it harms your privacy, it makes you feel you're being followed. Relatively many youths seem to be just fine with it though.
The influence of social media
An important aspect of cyber security is mobility: companies want to be able to reach their clients everywhere they go and employees are increasingly less bound to a workplace at the employer's office. For companies, political parties and the government too, social media become ever more important to know what goes on in the market or in society. An interesting case is the recent incident with an airplane from Vueling Airlines with which radio contact was lost and for which for some time the possibility of a hijacking was accounted for. Since 2001 such an airplane (a 'renegade', PF) is escorted by F16s by procedure. Imagine, however, that all passengers inside the airplane communicate through Twitter that things are fine, then how do you deal with that as a government? These are questions that are pondered over within the government at the moment. Another aspect concerns the role of the government: from a monopoly to a more independent role since for most part the cyber infrastructure is in the hands of companies. Then there's the authority issue: social media have an influence on the degree to which government campaigns are successful with the general public. A recent example is the government campaign for vaccinations against cervical cancer. A further aspect is that cyber security is community driven: the community makes itself the owner of a certain problem, as was the case for example with the Dorifel virus. This community consists of researchers, relevant companies, hackers etc. and can sometimes offer clarity on certain issues, unlike with classical investigation methods whereby the directions are with the government. However, the digital IQ of most companies is still low, so it is a challenge for the government to increase the digital IQ of companies, says Van Gemert.
Lack of a security concept in cyberspace
The Netherlands is a country characterised by seas and dykes: if the water seeps through, we build a dyke around it. This classical way of crisis containment is almost impossible in cyberspace. Companies often are not aware of where their data are situated precisely, how they are interconnected and which effects occur when a failure manifests itself somewhere. Apart from the human factor, platforms, applications and infrastructures all have problems of their own. Due to the interaction between these four levels, a security problem often becomes very extensive. In the physical world we are familiar with a safety concept; think of the safety regulations on a construction site. But is there such a security concept in cyberspace? And which roles do the government, the private sector and citizens play in this? At the moment this is insufficiently clear. On the highway certain safety standards and traffic rules are in force. But each citizen can also buy a computer and go onto the digital highway unprotected.
Since one and a half years the Netherlands has a National Cyber Security Strategy. Part of this has been the installation of a Cyber Security Council: an independent advisory body for the government. In the National Cyber Security Strategy it has been agreed that the Netherlands makes an annual Cyber Security Assessment of threats and actors. Furthermore, from the beginning of 2012 there is an operational management within the NCTV, which consists of two parts: 1) the National Cyber Security Centre, NCSC (which acts as a centre of excellence, among other things) and 2) a range of policies (which support, among other things, the answering of parliamentary questions and questions from the private sector). The starting point here are public-private partnerships; in this way new coalitions with new forms of participation between the government and trade and industry as well as with NGOs come to life. Both the government as well as private parties and experts take part in the Cyber Security Council and in the NCSC. One topic that is being dealt with together is cloud computing. Moreover, since recently the NCSC has an ICT Response Board; within this public-private partnership people from the government and the industry can be summoned up for advice and assistance in the event of incidents or crisis situations. Then there are ISACs, Information Sharing and Analytical Committees, in different areas, for example for the vital infrastructure with regard to energy, water, finances, etc. This too is a public-private partnership.
Threats in cyberspace
Cyber security has been a hot topic of late and negative incidents sometimes result in positive initiatives. There has been an unanimous request by the House of Representatives to set up a security breaches notification centre. In this context Van Gemert tells the following: "The Diginotar affair has made clear that the following question is of relevance: what can the government do in the event of a crisis? How can the government force a company that plays a key role to cooperate in order to prevent social breakdown and damage to society? Are such possibilities at our disposal in the first place? Our conclusion from July this year was affirmative, in case we can declare a state of emergency in relation to a cyber incident." Furthermore, Van Gemert stresses that we should not just invest in the detection of data leakages, but also in the right response to this. Hereby the role of the government concentrates on coordination, communication and consultation. In July this year the second Cyber Security Assessment of threats, targets and actors was released. The main threat comes from foreign governments (espionage) and cyber criminality. Contrary to what most people believe, so far cyber terrorism poses a smaller threat. In addition, cooperation between 'hacktivists' and foreign State actors (i.e. intelligence services) could be worrisome.
On the relationship between privacy and security, Van Gemert remarks that as far as he is concerned "there is no privacy without security. If you do not organise security, in the end there will no be privacy. You really do need to take measures to make sure your privacy is protected. Privacy and security have a mutual interest in each other. So in that area, information protection and related agreements are necessary. Also in order to protect privacy, on a daily basis the NCSC brings out advice on vulnerabilities which could be harmful for companies and citizens. Our website www.waarschuwingsdienst.nl is focussed on making citizens more aware and to mobilise them against threats. However, we are not a supervisory body, we cannot enforce anything. We can merely give out advice and propose best practices. Between 12 and 22 November 2012 the government will pay attention to 'awareness' through its campaign Alert Online in cooperation with 10 partners. This campaign is aimed at citizens as well as companies."
Finally, Van Gemert underlined the importance of fundamental digital rights and self-reliance of citizens through knowledge and awareness. Van Gemert brings forward three subjects for discussion with the audience: 1) How do security and freedom relate to each other conceptually? 2) What is the role of Privacy First? Is it always to be an opposing force or can it also be an ally? 3) What is the role within cyberspace of our law-enforcement and supervisory organs, for instance the police? What is their role when it comes to individual emergency aid and law-enforcement in cyberspace?
Discussion with the audience
Even though Van Gemert is not responsible for the cybercrime department, he is nevertheless prepared to say one or two things about it on behalf of the Ministry of Security and Justice. Answering a question from the audience about the possible international consequences which an intervention in cyberspace from the Netherlands may have, Van Gemert points out that the concept of virtuality requires a different approach compared to a territorial approach when it's not clear where a particular server is situated. He hereby makes a comparison with the development of maritime law in international waters. The country in which the damage occurs should form a point of reference in terms of jurisdiction. However, in this regard there are no unequivocal answers; the national and international rules on these matters are not yet clear. Brenno de Winter emphasises that Dutch hacking activities in foreign countries could well set a dangerous international precedent. What if a country like Iran ascribes those same powers to itself? This is a concern that is shared with others among the audience.
Another question from the audience relates to the public-private partnership as is the case with Diginotar. Israeli wiretapping systems in the Netherlands are being referred to as well. Does the Netherlands not make itself enormously vulnerable with this? Van Gemert replies that this has indeed become a prominent question since the Diginotar affair. However, he is not willing to go into the topic of wiretapping systems since he's not involved in this policywise. Then it's being mentioned from the audience that, within public-private partnerships in the area of cyber security, Dutch NGOs are structurally being kept out. De Winter too remarks that the NCSC is seen by many as an unreachable fortress where you're not being heard. Van Gemert responds to this saying the NCSC certainly does look for contact with pressure groups. Here too the question is which side do these pressure groups pick: do they take on an opposing or a supporting role? "I'm convinced that we should look for new forms of cooperation between the government, the industry and trade, the citizenry and with pressure groups, which make sure our society becomes more secure. Looking out for those contacts is the reason that I'm standing here," Van Gemert says.
Another question from the audience is about the detection of hack attempts. To what extend is this being delegated by the government to industry? Van Gemert reacts saying that the government does the detection work itself on the basis of the exchange of digital traffic data (not on the basis of content) as far as it concerns the vital (government) infrastructure; companies take care of such detection efforts themselves. Someone in the audience remarks that in this respect the government could take up the role of bringing together relevant knowledge and experience in each individual business sector. Another comment from the audience concerns the lack of international rules that was presupposed earlier: why does the Netherlands not conform itself to the already existing Budapest Convention on Cybercrime and why are the legal possibilities under this Convention not being adequately used? Other observations deal with the cooperation between Dutch municipalities, the banks and the telecom sector. Someone asks how big a threat cyber warfare really is and how the Netherlands prepares itself for it. Van Gemert here refers to cyber as the 'fifth battlefield' apart from the four domains of land, sea, air and space. This is an actual development: by now there are about 20 countries which have the capacity for this type of warfare. There are a lot of financial cuts in the Netherlands, but money is actually being invested on cyber matters by the Ministry of Defence. Cyber war entails a new question of attribution: which country inflicts the damage and how is one to react to it? During the discussion the US Patriot Act is mentioned as well as the risks of storing data in 'the cloud'. "Think carefully about what you put in the cloud," Van Gemert advises. Then comes the question to what extent the government considers the protection of personal data vital for our infrastructure and to what degree the government is keeping an eye on the risks of identity fraud and identity theft through the coupling of personal data to citizen service numbers. Does the government endorse the Scientific Council for Government Policy report called iGovernment? Is declaring a cyber state of emergency equivalent to a disaster or warfare situation in which all regular legislation can be nullified with all the privacy risks it entails?
Someone mentions that the police power to hack into computers of citizens could imply that computer data of individuals could be changed without it being noticed and could then be used against those same individuals. Van Gemert replies that personal data is fundamental and critical data that is to be protected properly. Not just companies but citizens themselves ought to be better aware of this. As far as a state of emergency is concerned, Van Gemert remarks that this was not even proclaimed during the Dutch flood of 1953. In terms of cyberspace there is no need for new, complementary legislation for a state of emergency. Current legislation for a state of emergency can only be applied in extreme situations.
Another point of discussion is the fact that for years the Dutch government has been dependent on Microsoft: why is this situation (with the associated privacy risks) lasting ever longer? On request Van Gemert clarifies his earlier remarks on a cyber state of emergency: such a situation cannot be proclaimed on the basis of a single incident, but only when we're dealing with large-scale societal breakdown. Then it is being asked from the audience to what degree the government has the responsibility of not making legislation and policies which can be copied and abused by other countries, like the way companies are not allowed to deliver certain dual use equipment to certain countries. Van Gemert tells that for some goods there are indeed UN sanctions lists: the Dutch General Intelligence and Security Service (AIVD) verifies this. A free internet abroad is mainly supported by the Dutch Ministry of Foreign Affairs. Generally speaking, a democratic society always needs to abide to a moral guideline. Then the discussion about possible government powers to hack computers in foreign countries comes to life again among the audience. In this context, does the permission of an examining magistrate offer sufficient protection against abuse? Someone else in the audience remarks that, nowadays in the area of phone-tapping, the examining magistrate has become some sort of rubber-stamping device. Someone remarks that Van Gemert's distinction of five domains of warfare is put too simply. In international law, traditionally there are only three domains of warfare: land, sea and air. Since the 1970's, in space the principle of 'peaceful use of outer space' applies. So why not introduce a similar new principle of 'peaceful use of cyberspace?'
In reaction to a question about guaranteeing privacy, Van Gemert replies that he attaches importance to clarity over what is and what isn't allowed. Through investigative powers sometimes one's innocence can also be proved. The challenge is finding the balance between cyber security and privacy, Van Gemert says. Then someone in the audience points to the dangers of the coupling of personal data and function creep. Our democratic constitutional State is no invariable matter of fact. Does the government take this into account? Van Gemert iterates that the challenge is in finding the right balance. Calls for new legislation by parliament after an incident are not always adhered to by the government, for instance when it concerns anti-terrorism legislation and emergency legislation. Then someone in the audience states that for a raid a search warrant is required, which is verifiable for the citizen. This verifiability is absent when hacking into a computer. Van Gemert responds by saying that such verifiability is equally missing when it comes to phone tapping or police observation, especially when it's a case that's not brought to court. In this respect, De Winter remarks that neither the existing compulsory notification is complied to by the government. From the audience it is added that through all registration measures the presumption of innocence of citizens is put under pressure. This changes society and makes people start to comply with an 'all-seeing government'. As a response, Van Gemert underlines once more that 'privacy and security cannot do without each other'. In his view these sorts of discussions are important to get more clarity and to be able to make steps forward. Finally, Van Gemert stresses the importance of a security concept in cyber space with sufficient attention to privacy.
De Winter gives the final word to the Privacy First Foundation. Chairman Bas Filippini thanks Van Gemert for his open attitude toward the opposition. In the view of Privacy First, discussions such as these are fundamental. In recent years there has been too little dialogue with the privacy movement; the government has grown bigger while participation by citizens has decreased. Privacy First is happy to accept the invitation to become part of the coalition. "We will be a necessary irritant, but you have to be able to deal with that", Filippini concludes.
In the context of a public consultation, the Dutch Ministry of the Interior recently requested Privacy First to react to the current government proposal to revise Article 13 of the Dutch Constitution (right to confidentiality of postal mail, telephone and telegraph). Below are our comments on the current draft of the legislative proposal (click HERE for the original Dutch version in pdf):
Ministry of the Interior and Kingdom Relations
Deputy Director for Constitutional Affairs and Legislation
Mr. W.J. Pedroli, LL.M.
PO Box 20011
2500 EA The Hague
Amsterdam, 29 December 2012
Re: Comments by Privacy First on the revision of Article 13 of the Constitution
Dear Mr. Pedroli,
On October 16th 2012 you requested the Privacy First Foundation to react to the draft legislative proposal to revise Article 13 of our Constitution. Privacy First is grateful for your request and is happy to hereby provide you with critical comments. In the first place, Privacy First fully endorses the desire of this government to modernise the current, archaic Article 13 of the Constitution. However, Privacy First regrets the fact that the government has not seized the opportunity to also renew and reinforce other ‘fundamental rights in the digital age’.
In the view of Privacy First, the first and third paragraphs of the current draft legislative proposal to revise Article 13 of the Constitution form powerful anchors for a future-proof right to confidential communication. The first paragraph rightly upgrades the old confidentiality of postal mail, telephone and telegraph to a technology-independent (or technology-neutral) confidentiality of mail and telecommunication. The third paragraph forms a correct guarantee for the horizontal effect thereof. Moreover, Privacy First endorses the broad interpretation that is being given by the draft Explanatory Memorandum (EM) to various relevant concepts. However, the second paragraph of the draft proposal contains a systematic imbalance which, in times less democratic, could endanger the rule of law in our society. It is precisely this paragraph which most of Privacy First’s criticism is focused upon. Other points of criticism concern compulsory notification towards citizens in the event that special powers have been used by the intelligence and security services, traffic data as well as the lack of a comparative legal section in the EM.
Judicial authorisation and national security
The EM rightly states that "in light of Article 13 (...) the protection of citizens against violations by the government is paramount, especially in light of the actions by the police and intelligence services. Demanding a judicial authorisation under the Constitution provides a strong and clear constitutional guarantee." It is therefore incomprehensible that in the second paragraph of the draft legislative proposal the domain of national security is being excluded from judicial supervision. After all, where the concentration of power is supreme, judicial checks and balances should be the most potent to prevent any (future) abuses of power. In light of European history, the exception in paragraph 2 is in fact entirely irresponsible: unfortunately, even in our part of the world a democratic constitutional State is not a static matter of fact. Apart from that, the current draft proposal sends out a dangerous signal to foreign governments. Furthermore, Privacy First deems the exception in paragraph 2 unwise in view of possible technological developments in the (far) future. The same holds true in relation to the (further) expansion of the notion of ‘national security’. Also in the future, the Dutch population needs to be protected against arbitrary violations of confidentiality of communication; in this regard the current wording of paragraph 2 offers no guarantee whatsoever.
Adding an extra ‘judicial layer’ would strengthen the current system of internal and external supervision on the intelligence and security services (and hence reinforce our democratic constitutional State). In this regard, the system of judicial supervision in a country like Canada could be a source of inspiration. Such judicial control would also be in line with the case-law of the European Court of Human Rights:
“The Court has indicated, when reviewing legislation governing secret surveillance in the light of Article 8 [ECHR], that in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.”
In light hereof, the current wording of paragraph 2 is not expedient. Privacy First thus advises a revision of this paragraph as follows:
“This right can be restricted in cases defined by law with the authorisation of a judge or, in the interest of national security, with authorisation from one or more ministers appointed by law.’’ [lining through by Privacy First]
As a possible alternative to the introduction of judicial supervision in the security domain, Privacy First advises to upgrade the existing Dutch Review Committee on the Intelligence and Security Services (CTIVD) into a more powerful, independent supervisory body, similar to the Belgian or German model with overall compulsory inspections beforehand instead of random supervisory inspections afterwards.
A second point of criticism concerns the lack of an explicit constitutional notion of compulsory notification in the event of any infringement of the confidentiality of mail and telecommunication. Compulsory notification provides legal protection to citizens and contributes to the correct enforcement of law by the government, also in the security domain. Like judicial authorisation, this offers the best guarantuees against short-term as well as long-term violations.
From Privacy First's point of view, traffic data too need to fall within the scope of Article 13 of the Constitution. These data are often related to the content of communication; this even follows from the text of the EM itself, where text messages ('SMS') and the email subject line are rightly mentioned as examples. The same goes for instance for search terms in search engines. Apart from that, it is possible to deduce the content of communication between individuals and/or companies from traffic data in conjunction with other data (possibly collected in real-time). So here too, a vigorous regime of Article 13 of the Constitution in conjunction with judicial supervision is essential.
Finally, in the current EM Privacy First misses a comparative legal paragraph in which current Article 13 of the Constitution is compared with constitutional best practices from countries with either a civil law or a common law tradition. Additionally, with a new Article 13 of the Constitution that is state-of-the-art internationally, the Netherlands could positively distinguish itself and to some degree regain its former position as a leader in human rights.
Privacy First hopes that this advice will be of use to you. We are willing to give clarifications on the above points upon request.
Privacy First Foundation
Director of Operations
 EM, at 18, 20.
 Compare EM at 11, 1st paragraph.
 ECHR 22 November 2012, Telegraaf vs. Netherlands (Appl.no. 39315/06), para. 98. Compare also ibid., paras. 98-102.
 EM, at 18.
Update 8 February 2013: see also the critical comments by the Netherlands Committee of Jurists for Human Rights (NJCM), Bits of Freedom and the newly established Netherlands Institute for Human Rights (in Dutch).