Disrupting Technologies – A UGlobe Dialogue on Bulk Interception of Communications

Photo credits: iStock/Global_PhonlamaiPhoto

The UGlobe Dialogue Series “Disrupting Technologies?” hosted its first event on 15 March 2018, in the week before the Referendum on a new Dutch Law on the Intelligence and Security  Services (the Wet op de inlichtingen- en veiligheidsdiensten, Wiv). This new law would extend the possibilities of secret services to monitor online behavior. Technology has changed since the usage of fixed telephony and dialup internet-access in the 1990s to the widespread use of smartphones, 4G and Wi-Fi-hotspots in 2018.  So changes in the law regulating the intelligence services are necessary, and in view of the upcoming referendum it is necessary to engage in a debate on the new competences regarding these new technologies and the framework of supervision of these intelligence and security services.

This UGlobe Dialogue was moderated by Cedric Ryngaert and started with an overview of the new law by Legal Research Master student Laura van den Berg. She touched upon the most important changes to the law and the associated criticisms. These changes include the bulk-interception of digital information that is transmitted through cables (onderzoeksopdrachtgerichte interceptie), and data-exchange with foreign services.

An important and controversial change is that the new law would enable to intercept communication via the cable in bulk. The new law is therefore often referred to as the ‘sleepwet’, the ‘dragnet-law’. However, the General Intelligence and Security Service (or AIVD) and the Intelligence and Security Service (or MIVD) cannot intercept communications at random. The services may only collect data if this contributes to a specific purpose that is accorded by the government. Peter Koop explained the technical workings of such interceptions. He explained how certain internet exchanges, such as the AMS-IX, can be effectively tapped, and communications filtered by using specific keywords relating to, for instance, components of weapons or chemical substances.

Because the new law on the Intelligence and Security  Services provides the AIVD and MIVD with new and more extensive competences that can potentially infringe the privacy of citizens, they must be accompanied by new safeguards and stricter control mechanisms. Mireille Hagens, representing the Review Committee on the Intelligence and Security Services (or CTIVD, pinpointed the most important challenges and opportunities that the new law offers for effective supervision, such as transparency requirements, involvement of technical expertise and a legal assessment framework. The new law requires supervision at three different levels: firstly the AIVD and MIVD ask the minister for permission to exercise their authorities, secondly a newly established Committee (Toetsing Inzet Bevoegdheden, TIB) assesses whether the permission given by the minister is in line with the law and thirdly, the CTIVD can check at any time, both during and after the investigation, whether the services comply with the legal rules.

A more critical opinion was voiced by Nico van Eijk, who questioned the parliamentary control on the law and the transparency of communication towards the public. He brought in mind the official advice of the  Council of State (Raad van State), which raised concerns relating to the proportionality of the data gathering, and stated that the framework of supervision in this new law is inadequate, especially in view of the protection of human rights in the European Convention on Human Rights.

The new law’s ‘technology-neutrality’ was attacked by both van Eijk and Bob de Graaff. ‘Technology-neutral’ means that the law tries to cover both current and future forms of technology. In the case of the new law this, however, results in ambiguity and legal uncertainty. De Graaff painted a picture of a future in which people might be connected to computers via their brains. Could such interactions be intercepted as well, and doesn’t that require additional safeguards in the law that protect, among other things, one’s bodily integrity?

In conclusion, Beatrice de Graaf provided a recap of the meeting,  and left the audience pondering about how much privacy we are willing to sacrifice for our safety. She called upon the general public to become more engaged in the debate about the impact of security measures like those in the new law.  Greater awareness is necessary, especially because of the “the elephant in the room”:  the opaque decision-making process and the lack of control of the technology on which all these security measures are built, the algorithms.

Upcoming UGlobe dialogues: 

30 May 2018 – Trust in the Platform Economy
2 November 2018 – “Towards and ethical and legal framework for Robots, Artificial Intelligence and Cyborgs” (Eindhoven) in collaboration with ROBOT LOVE.

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Lucky Belder

About Lucky Belder

The research of Lucky Belder concerns the legal and regulatory framework of innovation and creativity in times of technological innovation in ( international) public law and intellectual property law, and regards a range of issues including the protection of cultural heritage and cultural diversity, open access, private actors and the public domain, creative industries, and the introduction of artificial intelligence ( robotics) in society.