NHC Joins the Call for a Referendum on the Dutch Law on Intelligence and Security Services
The Netherlands Helsinki Committee supports the initiative for a referendum on the Dutch law on Intelligence and Security Services (‘Wet op de inlichtingen- en veiligheidsdiensten’ or ‘Wiv’). The broad and far-reaching extension of the powers of the General Intelligence and Security Service (AIVD) and the Military Intelligence and Security Service (MIVD) enabled by these legislative amendments, has aroused wide concerns about the future of privacy, freedom of thought and freedom of expression in the Netherlands. The NHC is particularly concerned about the consequences of the law for our cooperation with civil society in (semi-)authoritarian states, in particular, interception of communication and – without the necessary legal safeguards – data sharing with intelligence and security services of the country in question.
If the minimum threshold of 300.000 signatures of the petition is reached before October 16th, there will be an advisory referendum in which the Dutch people can give their opinion regarding the new legislation. Please support this initiative by signing via sleepwet.nl.
Below we briefly discuss main concerns about the new legislation, commonly referred to as the Sleepwet: (1) the possibility of so-called bulk interception of mass communication; (2) the limited legal checks and safeguards; and (3) the possibility that such intercepted data can be shared with foreign intelligence and security services.
Bulk interception
Popular reference to the new legislation on the Dutch intelligence and security services is the so-called sleepwet (which translates into something like draglaw) and refers to the main issue of concern with the new legislation: the possibility of so-called bulk interception of mass communication. The new legislation empowers the Dutch intelligence and security services to intercept mass communication on a massive scale, from large groups of people without any prior criminal suspicion. The use of such a sleepnet (e.g., a dragnet or trawl) for intercepting communication is one of the most disputed elements in the new legislation and has already received quite some attention in the media. While the new legislation requires interception to relate to a specific research theme, these themes can be formulated extremely broadly and do not have to relate to a specific person or suspect. The ‘research-focused interception’ would thus in fact enable the Dutch intelligence and security services to intercept all communication between entire countries, for example between the Netherlands and Syria.[1] All these data – regardless of their relevance to the underlying research – would be intercepted without any prior analysis of their relevance.[2]
Limited legal checks and safeguards
The new legislation thus broadly extends the powers of the Dutch intelligence and security services. At the same time, the legislation will also downgrade the existing safeguarding measures for the review of decisions to legally non-binding provisions, while simply removing altogether the system of judicial checks. Two review mechanisms remain, the so-called Committee of Review on the Intelligence and Security Services (Commissie van Toezicht op de Inlichtingen- en Veiligheidsdiensten, CTIVD) and the Evaluation Committee on the Use of Powers (Toetsingscommissie inzet bevoegdheden). Both committees are supposed to be composed of people with a legal background.[3] However, the legislation does not establish any independent judicial review of the use of the extended powers by the Dutch intelligence and security services. Such a limited system of checks is not in line with international standards and has been heavily criticised already in the drafting phase of the bill.[4] The largely non-binding and limited independent character of the review of the Dutch intelligence and security services also does not correspond to the relevant principles that have been developed under the case law of the European Court of Human Rights.[5]
Sharing data with foreign services
The new legislation not only empowers the Dutch intelligence and security services to intercept mass communication from large groups of people without any prior criminal suspicion, but also allows them to share these data with other (foreign) intelligence and security services. The legislation does not exclude the possibility that data are to be shared with foreign security services of repressive regimes. While criteria such as democracy and human rights, are to be taken into account in deciding whether or not to share data with foreign intelligence and security services, this decision is taken by the responsible Minister and can even be mandated to the Heads of the Dutch intelligence and security services.[6] The responsible Minister would take such decision in a legal vacuum. There is no independent judicial controlling mechanism reviewing these decisions either ex ante or ex post. Moreover, these data can even be shared with foreign services without any prior analysis or evaluation of the data by the Dutch services, e.g. without them knowing exactly how sensitive or harmful the sharing of the intercepted communication could be for third parties.[7] This means that the cooperation between the Dutch intelligence and security services with foreign services could lead to violations of human rights and potentially endanger human rights defenders and journalists in repressive countries.
The NHC operates as a non-governmental organisation from The Hague, promoting human rights and strengthening the rule of law in wider Europe, including in semi-authoritarian countries in the East OSCE region. Given our intensive cooperation with local partners, we are deeply concerned about the prospect that our sensitive communication with human rights defenders and partner organisations in repressive countries can be intercepted and even shared with the intelligence and security services of the repressive country in question. This might endanger local human rights defenders we work with on a daily basis.
[1] See for instance: https://www.nrc.nl/nieuws/2017/07/12/met-een-sleepnet-door-het-internet-op-zoek-naar-terroristen-6580813-a1544813
[2] For an informative discussion in Dutch about the relation between this mass interception and article 13 of the Dutch constitution also discussing this specific example, consult the following blog: https://pilpnjcm.nl/blog-artikel-13-grondwet-en-de-wet-op-de-inlichtingen-en-veiligheidsdiensten/
[3] The Evaluation Committee requires two members with at least six years working experience as a judge for instance.
[4] See for instance the critique of the Dutch Institute for Human Rights in a formal letter tot the President of the Dutch Parliament: https://mensenrechten.nl/publicaties/detail/37322.
[5] The human rights framework relevant for the Dutch system of review and checks on the intelligence and security services has recently been discussed at length in a report published as an annex to the official views on the Draft bill by the Committee of Review on the Intelligence and Security Services (Commissie van Toezicht op de Inlichtingen- en Veiligheidsdiensten, CTIVD). See https://www.ctivd.nl/documenten/publicaties/2015/08/26/rapport-universiteit-leiden. See furthermore for a discussion in English: https://pilpnjcm.nl/en/dossiers/bill-intelligence-security-services-act-wiv/
[6] See article 88 of the Wiv
[7] Article 89 requires again the consent of the responsible Minister and imposes a time limit of 12 months, but no further independent judicial review of these cooperation decisions is envisaged by the legislation.
