Below, in alphabetical order, are Privacy First’s main objections against the new Dutch Intelligence and Security Services Act (Wiv2017, or ‘Tapping law’):
A. Authority to hack
Under the new law, the Dutch intelligence services will be able to hack a target through innocent third parties. By hacking a third party (for example an aunt, a sister, a friend, a husband, a grandfather, a colleague, a neighbour, a public authority, a company, etc.), information can be obtained about the target. In other words, any devices of innocent citizens may be hacked by the intelligence services. Citizens will never be notified about this, as there is no duty to inform.
C. Chilling effect
The new law may result in people behaving differently (either consciously or not) than they would do in a free environment. This can have a negative effect on the exercise of their fundamental rights other than the right to privacy, for instance on the right to freedom of expression and the right to freedom of association, assembly and demonstration.
Under both the current as well as the new law, Dutch secret agents are authorized to commit criminal offences. However, up until now, the exact scope of this power has been unknown. Under the current law, this power could be further regulated through a (never introduced) General Administrative Order. A number of years ago, the Dessens Commission recommended introducing such a General Administrative Order after all. In the new Tapping law however, the foundation for this General Administrative Order has been scrapped, leaving behind a legal vacuum.
The new law enables automatic access to databases in both the entire private and public sector. This allows intelligence services direct access to various sensitive databases of companies, public authorities and other organizations, either through informants and agents (infiltrators), or through secret agreements.
The power to conduct ‘research-oriented interception’, popularly known as the ‘trawl net method’ or the ‘the dragnet-surveillance power’, allows intelligence and security agencies (secret services) to tap the internet traffic of large groups of people simultaneously. They may tap a particular municipality, neighbourhood, local community or street, in case one of their targets happens to live there. This entails monitoring the communications of innocent citizens by means of a digital dragnet. Privacy First believes that the data of innocent citizens do not belong in the hands of intelligence services. Apart from that, the collection of huge amounts of data makes the intelligence services less effective.
Under the new law, encrypted data in the possession of companies, public authorities and individuals (for example communications data) must be decrypted on the request of secret services. Refusing to comply with a decryption order will be punished with a maximum of two years’ imprisonment.
Under the Tapping law, the intelligence and security services will have their own DNA database. They may collect DNA of targets and non-targets (innocent citizens). In order to collect DNA, they are allowed to grant themselves access to confined places, such as offices or residences. Dutch magazine Groene Amsterdammer has recently written an extensive article about the DNA Collection Service.
E. European Convention on Human Rights (ECHR)
The right to privacy is a human right: this right is protected by article 8 of the ECHR. Privacy First is of the opinion that the new Tapping law violates the right to privacy. We are ready to start interim injunction proceedings (lawsuit) against the Dutch government in case the Tapping law comes into force. This would enable a judge to scrutinize the new Act and possibly render it (partly) inoperative on account of violation of article 8 ECHR.
Exchange of data
The data of innocent citizens and journalists that are collected through the use of internet dragnet surveillance can be shared with foreign intelligence agencies before first being evaluated by the Dutch agencies.
F. Fake news from the Dutch government
According to the Dutch Minister of the Interior Kajsa Ollongren, it’s not necessary that the government puts neutral information about the Tapping law referendum on its website rijksoverheid.nl. This means that the Dutch government does not provide objective information to voters.
The law gives too much power to intelligence and security services and too little privacy guarantees to citizens. After the Tapping law referendum, the law will have to go back to the legal drawing board, where proper privacy guarantees should be added and the exercise of powers be reviewed.
H. Human rights
Privacy is a human right. The right to protection of one’s private life applies to everyone and is being guaranteed by numerous international and European treaties. The Tapping law will massively violate this right, considering the fact that it allows for the collection, storage and international exchange of data of large groups of innocent citizens.
Hyping the terror threat
Proponents of the Tapping law have often put forward the argument that it will prevent terror attacks, as was shown by Dutch television show Zondag met Lubach. However, other countries have already shown that working in a focused, targeted way is much more effective. Opponents of the Tapping law agree that the current law needs to be updated, but they demand that the law be modified and improved in crucial aspects.
I. I’ve got nothing to hide
Everyone is entitled to having a private life. That’s why the data of innocent citizens do not belong to intelligence and security agencies. It’s important for these data, which include medical information, personal conversations, private emails, work-related emails, news stories, hobbies, interests and internet search results, to be protected properly. You may have ‘nothing’ to hide, but other citizens, like medical professionals, attorneys, activists, whistle-blowers and journalists certainly do.
Interception of cable-bound data
It is falsely being argued that the intelligence and security services are currently allowed to intercept data over the ether (non cable-bound) only and not any cable-bound data. Under current legislation, they may intercept cable-bound data when the target concerns, for example, a particular individual. Under the new law, secret services will be authorized to intercept cable-bound data on a large scale and without specific targets (the dragnet method).
Internet of Things
An ever increasing number of devices are connected to the internet. All these devices can be tapped and hacked under the new Tapping law. Think of a car, a camera, microphone, printer and perhaps even a pacemaker. After all, the Tapping law doesn’t exclude this possibility.
The communications of journalists may be intercepted under the new Tapping law by means of dragnet surveillance, among other ways. Secret services may acquire knowledge about this confidential information. This constitutes a threat to the freedom of the press and the journalistic right to non-disclosure of sources. Only retrospectively will secret services delete information that turns out not to be useful for any investigation.
In most cases, a judicial verification of the exercise of powers is lacking. As explained under ‘Review Board for the Use of Powers’(TIB), the new Review Board lacks the investigatory powers for effective and independent monitoring.
In his tv programme Zondag met Lubach, comedian and television presenter Arjen Lubach has looked into the Tapping law three times, explaining why it’s good to be critical about it. You can watch the videos (in Dutch) here: Tapping law 1, Tapping law 2 and Tapping law 3.
M. Medical confidentiality
Under the new law, the medical confidentiality of patients and the medical secrecy of doctors cannot be guaranteed: secret services can make a request to anyone, including doctors and hospitals, to hand over relevant data and to grant access to their data system (Electronic Health Record). They can also hack into such systems. This can lead to the evasion of health care among patients, which could endanger national health.
N. Notification obligation
Under the new law, the notification obligation is insufficient. Five years after exercising a certain power, the person concerned should, in principle, be notified about this. This, however, applies to only a few of the newly introduced powers. Privacy First thinks the notification obligation should apply to the exercise of all powers.
O. Other countries
Under the new Tapping law, data that have been collected may be shared with other countries without being evaluated first. This means that Dutch intelligence services can share unseen and unselected data (of innocent citizens) with foreign secret services. Once the data have been shared, Dutch intelligence services won’t be able to monitor the use of these data anymore.
P. Presumption of innocence
With the introduction of the new law, the presumption of innocence gets inverted. The dragnet-surveillance makes every single citizen a potential suspect, without any concrete ground to monitor someone in particular. Moreover, large-scale data collection increases the chance of false positives.
Q. Quest for data
The Dutch government has developed an enormous thirst for data. Whereas neighbouring countries go back to a target-centric approach, the Netherlands embraces Big Data. This leads to an ever growing haystack in which finding the needle will become increasingly difficult. More data is no equivalent to more security.
R. Review Board for the Use of Powers (TIB)
Independent supervision in all phases of the exercise of powers by secret services (before, during and afterwards) is insufficiently guaranteed. Since intelligence services operate secretly, citizens against whom such powers are exercised cannot object to this themselves. That’s why the exercise of powers is to be reviewed independently. The new Review Board for the Use of Powers (Toetsingscommissie Inzet Bevoegdheden) reviews beforehand whether the minister has rightfully given approval for the exercise of a relatively far-reaching (‘special’) power under the new law. This review is substantiated by less guarantees than the review by a judge. Furthermore, the Review Board doesn’t have any investigative powers of its own and is completely dependent on the information it’s provided with by others. Various authorities, such as the Dutch Data Protection Authority, have warned that the Review Board shouldn’t become a 'rubber stamping machine'.
Review Committee on the Intelligence and Security Services (CTIVD)
The judgments of the Review Committee on the Intelligence and Security Services, which retrospectively reviews whether or not powers have been applied lawfully, are not binding. The Minister of the Interior may not take the findings and recommendations into account and continue to unlawfully use powers.
Privacy and security are unduly placed on opposite sides of the balance. In a free and democratic society, privacy and security go hand in hand. It’s possible to draft an Intelligence and Security Services Act that has good privacy safeguards under which information of innocent citizens doesn't end up in the hands of intelligence agencies.
Unevaluated data that have been collected through ‘dragnet surveillance, may be stored for three years. These data may also be shared with other countries, even without first being evaluated. Data that the intelligence and security agencies deem relevant may be kept for as long as they are regarded as such.
Z. Zero days
The intelligence and security services have the power to make use of unknown software vulnerabilities, so called zero-days. Such vulnerabilities are known to them, but not to the creator or manufacturer of the software. They don’t have to notify the manufacturer about it. This allows malicious parties to exploit vulnerabilities, even over longer time periods. It also creates a black market, where such vulnerabilities and data breaches are traded.
This list is not exhaustive and can be supplemented at all times.