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Privacy First’s objections against Dutch Minister Opstelten’s hacking scheme

Tuesday, 02 July 2013

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:

Your Excellency,

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:

  1. 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.
  2. 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.      
  3. 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.
  4. Moreover, this legislative proposal violates the prohibition of self-incrimination (nemo tenetur se ipsum accusare).
  5. Function creep is a universal phenomenon. This will also apply to this legislative proposal, which will form the basis for future abuse of power.
  6. 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.
  7. 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.
  8. 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.
  9. As of yet the legislative proposal lacks a thorough and independent Privacy Impact Assessment.
  10. This legislative proposal stimulates suboptimal (i.e. crackable by the government, because otherwise illegal?) instead of optimal (‘uncrackable’) ICT security.
  11. Fighting cybercrime demands multilateral cooperation and coordination instead of unilateral panic-mongering as is the case with this legislative proposal.

Yours sincerely,

The Privacy First Foundation