“Citizens who are not suspected of wrongdoing, ought not to be monitored on such a large scale by the secret services.”
The Netherlands is about to implement a new law that expands the current powers of its civil and military intelligence services to collect data en masse. David Korteweg, a digital rights advocate from the NGO, Bits of Freedom and other critics believe that the new Dutch Intelligence and Security Services Act seriously undermines essential values of democracy and human rights, including the right to privacy and the protection of journalists’ sources.
Members of the public are opposed to the new law. The results of a public referendum held last week revealed that 49.4% of voters oppose the Act and 46.5% are in favour of it, with a 51% turn out. Critics say that the Act is vaguely drafted, with too few safeguards and insufficient judicial oversight in place to adequately protect the privacy of individuals.
Who does the Act help?
The Act allows civil and military intelligence services to hack third parties, intercept cable-bound communications in bulk and indiscriminately collect data for analysis. Essentially, it grants intelligence services these powers so that they can collect and analyse data for risk and threat assessments, particularly in relation to potential terrorist attacks and cybercrime. However, the methods of interception allowed under the Act would also enable secret services to collect information from so-called ‘non-targets’ in some circumstances - from their emails, internet browsing, social media and mobile apps.
Debating the issue
TrustLaw, the Foundation's global legal pro bono service, Pro Bono Connect, a Dutch public interest clearinghouse and the law firm De Brauw Blackstone Westbroek brought together NGOs, lawyers, journalists and academics in Amsterdam on 8 March to discuss the implications of the Act. The digital privacy event was the first of its kind to specifically scrutinise the potential impact of the Act on NGOS, journalists and lawyers. Panelists included: Axel Arnbak (De Brauw Blackstone Westbroek), Sarah Eskens (Faculty of Law at the University of Amsterdam), Jelle Klaas (Public Interest Litigation Project), Lotte Houwing (Public Interest Litigation Project), David Korteweg (Bits of Freedom) and the discussion was moderated by Doutje Lettinga from Amnesty International.
The panelists discussed a number of issues, including: bulk interception powers under the Act and safeguards to prevent the misuse of these powers; the sharing of intelligence with foreign intelligence agencies; and the implications for the work of journalists, lawyers and NGOs.
Global impact: risks to human right defenders and NGOs
The Act will have international repercussions. One thing commentators seem to agree on is that the ability of intelligence services to share unevaluated data with foreign governments is very worrying.
Sarah Eskens, a PhD candidate at the Faculty of Law, University of Amsterdam said, “Unevaluated, raw data may contain information about dissidents, activists, and LGBTQ people living abroad for example, because they communicate with family and NGOs in the Netherlands. These people may have nothing to fear from the Dutch services, but they might have to fear their own governments. Sharing unevaluated data is only allowed after authorization by the minister and only if it is shared with reliable partners. However, countries who are a reliable partner today, may be less reliable tomorrow.”
Korteweg agrees: “When we hand over data to foreign governments without analyzing it first, we run the risk of not knowing what potentially sensitive information falls into foreign hands, and the consequences that might have for citizens in the Netherlands and abroad. This is unacceptable and will be especially problematic for NGOs and journalists operating internationally. Confidentiality and trusted communications are essential for them to do their work.”
This isn’t just a Dutch issue - governments around the world are expanding their powers to collect data from individuals. Certain powers included in the United Kingdom’s Investigatory Powers Act were recently successfully challenged in court and France, Germany and the United States have similar data interception laws. This data can potentially be traded with other governments, making data a valuable political currency.
Litigation
Whether the public referendum will have any effect on the government’s decision to press forward with the new Act in its current state, remains to be seen. If the Act does come into force, NGOs who oppose the law may resort to litigation to challenge it. The Public Interest Litigation Project (a project of the Dutch section of the International Commission of Jurists) and a coalition of twelve NGOs are preparing a court case to challenge the Act.
Litigation Director, Jelle Klaas, who is leading the coalition, said he was “confident that the Dutch judges will protect the right to privacy and decide that this bill is a violation thereof. Still, the coalition is aware that the legal procedure might have to be taken all the way up until the European Court of Justice or the European Court of Human Rights”.
TrustLaw is the Thomson Reuters Foundation’s global pro bono service that offers free legal assistance to NGOs and social enterprises in 175 countries. If your organisation is interested in receiving free legal assistance, or if you are a lawyer interested in doing pro bono work, please contact the TrustLaw team at trustlaw@thomsonreuters.com.
