Conclusion

This paper attempt to give an answer to the following research question:

To what extend will the amendment strike the balance between the security and privacy interests of Dutch citizens?

There is a lot of criticism on the amendment, the two biggest criteria which relate to the research question are about the fact that people’s privacy would be extremely violated, especially because this law makes it possible for the intelligence services to intercept people without having a specific target. Secondly, people question whether the minister is the right person to authorize the requests from the intelligence services to use special powers.

This paper examined these two points of criteria and started by explaining procedural justice. A key element which is valid for procedural justice are the ‘authoritative’ standards. Examination of already existing policy showed that the ECHR is an important convention for all EU members. In order to meet the ECHR, the government built some safeguards into the Wiv. Intelligence services need, for example, authorization from the minister if they would like to use a special power which intrudes the privacy of an individual extremely. These ‘authoritative’ standards are not the only elements to examine procedural justice. Leventhal (1980) created six criteria and the analysis of these criteria showed that not all six of the criteria are met. Bias suppression and representation are criteria which make people doubt if the minister should decide if an intelligence service may use a special power, like the interception of people without having a specific target. Therefore, people do not view the procedure as fair, even though other criteria like accuracy and correctability are met.

The idea that the procedure is unfair may lead to the idea that there is no balance between privacy and security. However, the idea that people do not have privacy does not seem to be correct. The services will not randomly intercept everyone, they need to have some indications before they will and can intercept. Their process of intelligence gathering is divided into three phases: acquisition of telecommunication, pre-editing of the intercepted data and the analysis of the data. Only in the third phase the content of the data will be analysed by analysts. The second phase will give insight in someone’s identity and if there is no suspicion, the data will not be analysed furthermore. This way of analysing data has similarities with the way how Demchak and Fenstermacher (2004) described their theory of keeping the balance between security and privacy. Even though it is possible that data of

ordinary citizens is gathered, this does not mean that this data will be analysed or will be seen by officials. Nevertheless, privacy advocates state that violation on privacy is already done when the data are collected.

To give an answer to the research question, the balance between privacy and security is kept with the new Wiv. Outsiders view the procedure as unfair because there are some questions about the procedural justice of the decision-making process. Therefore, the idea raises that privacy and security are in unbalance.

Policy aspect

In order for a procedure to be labelled as fair some criteria of procedural justice have to be met. This entails amongst others the ‘authoritative’ standards, like laws. Examination of the literature showed that there is no clear definition about privacy or security, therefore, the following question was developed:

What does the Dutch and European law state about the right of privacy and the right of security?

The Dutch constitution, article 10, states that everyone has the right to privacy. Exceptions on this right are, however, possible. On European level there is the ECHR, which states the fundamental rights. Nevertheless, it does not become clear what privacy exactly entails.

Security is also difficult to find in the laws. The ECHR states something about the right to liberty and security, nevertheless, basically all rights, treaties and laws are ways to ensure security. To be able to act against threats it is sometimes allowed to violate another right, for example if national security is at stake. Nevertheless, what national security exactly entails is not stated in a law, countries are allowed to give their own interpretation to this term.

To ensure that the Wiv meets the ECHR, some safeguards are built into the Wiv. If, by using the special powers, the fundamental rights of citizens are harmed, the minister needs to give authorization. Besides, there is a ‘need to know’ principle which ensures that only people who need collected data are allowed to get access to this data.

Technological aspect

How does the amendment relate to the framework of Demchak and Fenstermacher and what methods are used to gather information?

The Wiv is a legal framework for the intelligence services, it describes the tasks of the intelligence services as well as their special powers, which they can use in order to ensure national security. One of these special powers is interception without having a specific target. This power led to a lot of criticism, because people fear to lose their privacy. The idea that everyone will be intercepted by the services is incorrect. The services receive from their minister subjects which, according to the minister, are relevant to investigate. Next, as the intelligence cycle shows, a plan is developed which states what kind of intelligence is needed. If the service decides to intercept non-specific targets, this does not mean that it will happen at random, while the services do not have the capacity and time for this. The services need to have an idea where to find relevant information, it could be possible that, also, data from a non-relevant actor will be collected, but this is not the intention and this data will be destroyed.

Demchak and Fenstermacher (2004), created a framework that stated that by separating behaviour and identity, the balance between privacy and security can be kept. According to respondent Mr. Hijzen, the idea of separation of identity and behaviour is already used. With non-specific interception power, the services are not allowed to analyse immediately the content of their gathered information. There are a few steps which should be followed before meta data analysis can be done. The privacy advocates have their doubts about his idea. Citizens, already, do not have much faith in the government and they will also have doubts if this separation is really happening and if it will really work. According to respondent Van Den Berg it will be easy to relocate the origin of this information. Organizational aspect

The organizational aspect was more about how things are organized in the new law. Therefore the following question was asked:

To what extend does the amendment relate to the other literature, such as advised measures and the way how supervision should be arranged?

One point of criticism on the new Wiv is about the way supervision is performed. There are two forms of supervision, external and internal. External supervision on the intelligence services is performed by the CTIVD and the House of Representatives. The CTIVD gives (unsolicited) advice to the ministers of Interior or Defence. Most of their oversight is done after an action has been performed. The CTIVD has the possibility to give their opinion also before an action is performed, but this is not binding, so, the minister can ignore this advice. The House of Representatives oversees the intelligence services. There are two types of oversight, first there is the CIVD who discusses classified information and oversees this part. Secondly, there are the committees of Interior and Defence who each discusses public information from either the AIVD or MIVD.

Internal supervision is mainly performed by the minister of Interior for the AIVD and the minister of Defence for the MIVD. If the services want to use a special power in order to gather information the minister should authorize this. It is possible that the minister gives another official the authorization to do this. Powers which violate privacy or another fundamental right enormously, like interception of communication with a non-specific target, always need approval from the minister. Only less intrusive powers may be mandated to officials, like the head of a service.

Especially about internal supervision is criticism while people question whether the minister is the right person to do this. Not everyone believes that the minister is neutral in his decision-making and if he takes the interests of the citizens into account when the services come with a request. Thus, bias suppression and representation remain questionable.

Evaluation aspect

What will happen in the future after this amendment is approved, how will the balance develop?

An evaluation process is included in the new Wiv to prevent that in a couple of years the services again are not able to perform their tasks anymore. Besides, the Wiv contains the correctability criteria for procedural justice.

If this amendment is approved in the way it is now, there will be organizations who will go to court. Privacy First will, with others, then try to annul the law while it violates the right on privacy too much. How the balance will develop in the future remains uncertain, as Privacy First and respondent Mrs.

Van Den Berg explained, the debate between privacy and security is a pendulum of a clock. After attacks it will swing towards security, but there will always come a contrary motion which will stand for privacy. In this way security and privacy will keep their balance.