Evaluation Aspect

The commission Dessens advised that an evaluation process should be included in the Wiv (Commissie Dessens, 2013). As a reaction on this advice article 147, mentioned in paragraph 2.5, was included. This article states that the Prime Minister, in accordance with the relevant ministers, should sent the States of General a report about the effectiveness of the Wiv. This report should be made every five years. Next to this report, the ministers of Defence and Interior should also draught a report. This

report needs to go more into the functioning of the services, the AIVD and MIVD. With this evaluation it is guaranteed that the law and the intelligence services work appropriately and in the way as is expected of them (Memorie van Toelichting, 2015).

Bressers, Van Twist and Ten Heuvelhof (2012) warned for meaningless evaluation reports. If policy officials develop their own evaluations their political strategies will probably influence the outcome of the reports. While the ministers of Defence and Interior and the Prime Minister need to establish these reports the warnings of Bressers, Van Twist and Ten Heuvelhof (2012) may also be present in these reports. Perhaps the fact that the reports need to be sent to the States of General will lead to less meaningless evaluation, while the States of General will ask questions about the reports. There is not much information about the arrangement of the evaluation process. The reason why the government chose to establish the evaluation process in this form is unclear. Apparently the government decided to follow the advice given by the commission Dessens who gave the advice to include an evaluation in the Wiv which should be performed by the ministers (Commissie Dessens, 2013).

What kind of criteria are used in order to establish an evaluation report is unclear. In chapter 2, different criteria were given to examine if a procedure has been performed fairly. Most of these criteria were already discussed during the previous paragraphs, however, correctability was marked as an evaluation criteria. Even though all criteria should be examined in order to get a conclusion whether procedural justice was met, correctability is a criteria which can only be examined after an decision has been made. When a decision is made there should be a possibility to recover this decision when it is incorrect. Examination of the new Wiv showed that this criteria is included in the law. Part 4 of article 49 states the right which is related to the correctability criteria:

‘’4) The one who read the data relating to him/her, may request the head of a service in writing to improve, supplement or delete it, if this is inaccurate, or if the purpose of the processing is incomplete or irrelevant or in violation of any law. The request shall describe the amendments.’’ (Wiv, 2015; Article 49-4).

So, everyone who wants to, can make a request to get insight in personal data which is used by the services. Nevertheless, there are different requirements and it is not always possible to get full access to the data (Wiv, 2015).

4.4.1. Balance between security and privacy

Threats have changed in the recent years. Society has known big terrorist attacks like 9/11, the Madrid and London bombings, and most recently the terrorist attacks in Paris. Due to these events the debates about security started again. The debate on the 19th _{of November about the attacks in Paris showed}

that security is again a serious topic. According to Privacy First, this is a reaction which is often present after a dramatic event. These reactions seem logical, but it is unwise and it does not show the rationality to develop policy. Besides, privacy and security should not be seen as each other’s opposite, but they should be placed in one line. If security is seen as collective security and is about, amongst others, protecting the democracy, then there is no tension between security and privacy, because privacy has an important role in realizing and guaranteeing the rights of the democracy (personal communication, November 30, 2015).

The idea that security and privacy should be compared with each other and that one is more important than the other has received less supporters in the last years. Respondent Mr. Böhre (Privacy First) explained that the recent attacks in Paris have resulted again in comparing security and privacy. In

order to decrease these beliefs, academics and politicians should actively participate in the debates. It is known from previous events that after a while the balance between security and privacy will stabilize itself again. Because of this stabilization, he referred to the balance as the pendulum of a clock. Sometimes it will swing more to security, other times to privacy. These shifts between privacy and security are also mentioned by respondent Mrs. Van Den Berg who referred to it as a swell.

There are also other thoughts about the balance in relation to the new Wiv. Respondent Mr. Hijzen, for example, does not see an enormous shift towards security with this new law. He states that this law is not developed because IS has become a huge threat, the decision to adapt the law has been made years ago. On the other hand, Amnesty International believes that by accepting this law, security becomes more important than privacy. The amendment is too widely formulated and it does not meet the ECHR anymore. Besides, it is also the question if collecting bulk data helps in preventing terrorist attacks from happening, while there is no proof that this will be case according to Amnesty International (personal communication, November 17, 2015). In addition, Mr. Hijzen mentioned that, even though ‘checks and balances’ are added in the amendment there will be no guarantee that the data are used in the correct ways. There will always be room for individual trade-offs by the employees of the AIVD and MIVD. Therefore, more attention should go to the organization of the AIVD and MIVD. One way of achieving this is by trainings, and teaching them how to create a framework which will lead them to a deliberate decision. Professionalization will lead to better use of the special powers. This usage of special powers can also change again in the future, due to new technologies. Mr. Hijzen used the example of the mobile phone, communication with the mobile phone has changed enormously in the last five to ten years. So if the amendment is very specific about what the intelligence services are allowed to do, there is a possibility that in a couple of years this does not fulfil the needs anymore. Mr. Hijzen does not see, for now, a need by the intelligence services to receive more powers (personal communication, November 9, 2015).

Privacy First agrees with Amnesty International about the fact that all this data gathering will not help the intelligence services with their investigations. One of the reasons that this will not be the case is that citizens will, perhaps unaware of it, change their behaviour. If people are aware of the fact that it is possible that they are monitored by everything they do and that this information may be used against them, they may change their behaviour. This is also called the chilling effect. Because this is probably not what the intelligence services would like to see happening in the future, while this makes it harder to detect threats. According to Mr. Böhre, the intelligence services need, looking from their perspective, an open society. If everyone feels comfortable to share their own opinion, the intelligence services have a better overview of peoples beliefs. Probably, it would then be possible to detect threats in an earlier stage. By collecting everybody’s data, only ordinary citizens will be caught. As respondent Mrs. Van Den Berg explained, only sixteen year old boys sitting in their bedroom, trying to hack into a company’s server, believing they will succeed but then fail, will be caught. The big guys have knowledge about what they do and will not be caught by this type of information gathering. The question will then be, are we willing to pay the price for catching these sixteen year olds?

Going back to the amendment, if it will remain the same as it is now and no adaptations will be made a contrary motion will develop. Privacy First already stated in their notion on the consultation that if this law is accepted and implemented they will go to court (Böhre, 2015). It would not surprise Privacy First if the amendment will be adapted and becomes privacy-friendlier. The chance that this amendment will be accepted by the Senate is also not very likely. The Senate is more critical than the

House of Representatives and the senators have more expertise. Privacy First is certain that the amendment will never be accepted by the Senate in the way it is now. If adaptations are made this will not guarantee that Privacy First will not go to court. If it still violates the right of privacy, Privacy First will, together with other organizations start a lawsuit.

4.4.2. Sub conclusion

After dramatic events the call for more security will rise, but as respondent Mr. Böhre mentioned, nowadays there are enough organizations, experts and politicians who will stand up for the fundamental rights. According to respondent Van Den Berg, it will not occur that in the future it will either be privacy or security because a contrary motion will develop in order to stop it. However, probably something needs to go wrong in order to start this contrary motion. To ensure that the services are able to perform their tasks in the future, an evaluation is added in the Wiv. Every five years the Prime Minister and the responsible ministers have to create a report about amongst others the effectiveness of the law.