Last Monday, a publication in de Volkskrant that intelligence services AIVD and MIVD try to wiretap internet communication in spite of years of political promises. In 2018, both the Dutch population and the House of Representatives spoke out clearly against this method, which has so far been blocked by an observant regulator. But with the amendments to the so-called sleep law recently proposed by the government, this digital mass surveillance is still becoming a reality.
Unfortunately, this sneaky insistence is not the only example of data-driven control instincts that are increasingly eroding our democratic constitutional state. At the beginning of 2017, the House of Representatives discussed the Intelligence and Security Services Act (WIV), better known as the Sleep Act. Although it regulates various powers – from hacking to the use of informants – the political focus was on the dreaded ‘dragnet’: the large-scale tapping of internet data.
Privacy advocates and critical MPs, including myself, proposed that the services be legally obliged to work ‘as purposefully as possible’. But the cabinet thought this was superfluous and the then Minister of the Interior Plasterk solemnly promised that the tapping of an entire neighborhood or district would never take place.
After the House of Representatives voted in favor of the towage law partly on the basis of this promise, opponents took the initiative for a referendum. During the campaign, the services and the cabinet again swore that the wiretapping would remain small-scale. Despite this, a majority of voters voted against the towage law on 21 March 2018, after which the cabinet finally tightened the law with fresh reluctance.
Tap
It has now become clear that behind the scenes services behave very differently than they promise in front of the scenes. The 2021 annual report of the Assessment Committee Deployment of Powers (TIB) shows that, with the approval of the minister, the AIVD and MIVD have tried to capture the internet traffic of ‘millions of citizens’ at the same time. Not only by tapping through local providers such as KPN, but also through international cable companies such as Eurofiber.
The Commission of Supervision of the Intelligence and Security Services (CTIVD) has previously established that the practice of wiretapping is not in accordance with the way in which the authority and the means are intended. Harder said, but no less true: the services violate the towage law.
Key
The good thing about the current sleep law is the strict supervision of the powers: the built-in pre-test has managed to prevent far-reaching mass surveillance. But it is precisely this that the government now wants to weaken by only exercising control over the services during and after the data operations. As a result, the services will have extra leeway and will have more mass data on innocent citizens.
Under the well-known guise of ‘national security’, supplemented with the occasional argument of ‘Russian cyber threat’, the government is thus unilaterally responding to the security services that have been complaining for years about their limited powers and restrictive supervision. This while a good balance between collective security and individual civil rights is necessary.
Certainly in view of the parliamentary history of the towage law and the historic referendum, it is an unwise decision. But what is even more problematic is that this state of affairs does not stand alone.
fake accounts
A comparable money laundering operation takes place under the new law on the National Coordinator for Security and Counterterrorism, the NCTV. Last year, this government agency turned out to be secretly and without legal authority to follow citizens with fake accounts on social media. Instead of handing out a corrective slap on the fingers, the Minister of Justice and Security subsequently submitted an emergency law to give the service the missing powers. The world upside down.
Another example is the hacking law. On the basis of this law, the police may hack into computers and purchase cyber weapons (software programs) for this purpose from commercial companies. Because of the risk to both civil rights and internet security, this sweeping power requires close scrutiny. Especially now that it appears that several EU member states have used the controversial espionage software Pegasus from the Israeli company NSO to crack the telephones of citizens and even politicians, as recently emerged in Spain, for example. However, in response to repeated parliamentary questions and journalistic investigations, both the cabinet and the national police are doing everything they can to keep the use of spyware secret.
Inappropriate
The secret use of digital technology and the subsequent rectification of illegal acts does not fit within a democratic constitutional state. It is built on principles such as the presumption of innocence, the right to privacy and the principle of legality. Nor does this approach match the so often preached new administrative culture in which the government would become more transparent and approach citizens with more confidence. The fact that our government commits these violations with good intentions and the aim of protecting society does not change that.
Although the subject matter is technically complex and these types of dossiers are less mediagenic, the House of Representatives has a crucial task here. Limiting the data-driven urge to control is necessary to maintain our democratic constitutional state in the digital age.
Kees Verhoeven is a former Member of Parliament for D66 and advisor to government and business in the field of digital issues.