Proposed law aims to modernize communications protections

Edition 18 May 2017, by Megan Yanicke

There’s a push in Dutch Parliament to bring communications protections up to date with the way most people actually correspond these days – on Whatsapp. Since the 19th century, laws have been in place in the Netherlands to ensure the government cannot easily read or intercept citizens’ letters in the post. Later, protections were expanded to include telegraph communications and phone calls. A search warrant from a judge is required to access these private communications if there is a suspicion of danger or criminal activity, such as a bomb threat.

A new constitutional amendment, which was first proposed in 2014, will include protections for digital correspondence sent through email and messaging apps. The wording of the amendment refers to ‘telecommunications’ with the idea of being general enough to cover future technologies and communication methods. The majority of the lower House agrees. “The current article is hopelessly outdated, we have it all in agreement,” said Sven Koopmans (VVD). Supporters say Article 13 must be established in the Constitution so that “everyone has the right to respect for his correspondence and secrecy of telecommunications.” Koopmans has called for keeping the amendment ‘sober and neutral’ to ensure it is quickly passed.

However, there are already some ideas for adding to the law. Kees Verhoeven (D66) would like to clarify that confidentiality can only be violated if this is ‘necessary’ to protect national security. At the moment, the wording states that confidentiality can only be breached if it is “in the interest of national security.” According to Verhoeven, the distinction must be made between the words ‘interest’ and ‘necessary’ ensure that confidentiality is not violated if alternative research methods are available. Dutch news sites have reported that Minister Ronald Plasterk of Home Affairs has discouraged Verhoeven’s motion.

Nevin Özütuk (GroenLinks) wants letters sent through the mail to be mentioned separately, so that a court still has to give consent for breaching confidentiality for that method of communication. In the proposed amendment it is not necessary for the judge to give consent on every form of communication to allow a privacy breach. Ronald van Raak (SP) does not want a distinction between physical mail and other forms of communication. Instead, he said the Court should make a ruling on all forms of communication. There is no indication yet of when the proposal will be voted on in the lower House, however it is likely that the decision will be made by the new government, which is still being arranged.

Under Dutch law, there are protections in place to safeguard email messages against cybercrime. An employee of an internet service provider who who intentionally intercepts data from customers for unlawful use could be punished with up to one and a half years in prison. However, agreements can be made between the customer and provider which allow the provider to look into the messages to prevent phishing and spam emails. Electronic messages are always stored on a server and in recent years there has been increasing concern for the security of those messages. During the 2016 U.S. presidential election, for example, the email servers of both the Democrat and Republican parties were hacked and emails from the Democratic party were leaked to the public. It is believed the leaks impacted the election results.