Principle 3: interference should be proportionate to the legitimate

The subsidiary criterion

Table 8-1 provides some insight in the different regimes for different types of data. For iden- tifying and user information the requirement is that it should concern a suspect of crime, or- ganised crime or terrorism. Traffic and location data (historic or future) of telecommunica- tions can be requisited by the public prosecutor for investigative research20_{, i.e., indications}

of serious crimes; investigations of committed crimes or pro-actively addressing organised crime through identifying criminal networks (Sietsma 2007, p.38); or investigations on terror- ism.

Sensitive data processing requires the highest authority (the Magistrate) to consent. The highest authority consent requirement also applies to the content of communications (email, voice mail, phone tap), and the real-time (location) data of cell-phones (see Table 8-1). For the real-time tracking and tracing of individuals the Magistrate not only needs to confirm the urgency for the use of such means, but also whether this would not demand an unrea- sonable effort for the telecom provider (Explanatory Memorandum Kamerstukken 2003- 2004, 29441, nr. 3 p.9). Therefore, these means should be used to the minimum extent pos- sible (only in very urgent instances) (Explanatory Memorandum Kamerstukken 29441, nr.3 p.25). Mevis (2001, p.66, p.91) holds that the public prosecutor misuses his powers when he demands special efforts from telecom providers if he can arrive at similar results with the special authorities available to him such as ‘physical observation’. Only if such data cannot be reasonably collected through these means and a pressing investigative need is present, the monitoring may be accomplished through the cell-phone data.

The order of sensitiveness in Dutch law (Sv) may be as follows (from most sensitive down): - sensitive data; content of the communication (conversation; email/ voice mail), real-

time (location) data;

- (historical and future) traffic and location data (standby or active use); - user data, and identifying data.

searches specifically focussing on a certain time and place (Explanatory Memorandum wet BOB Kamerstukken 1996-1997 25403, nr. 3, p. 27, referred to in Buruma 2001, p. 43).

The proportionality criterion

For the proportionality criterion, interviewees indicated that it is difficult to provide a general decisional framework to assist in the balancing of law enforcement and privacy since each case is unique; the standard case does not exist. Therefore, what may be proportionate in one case, might be disproportionate in another. Several examples may clarify this.

1. A series of purposely lighted fires in Amsterdam may not have a great impact on the public order as a similar series in a small town.

2. A marihuana plantation in a villa may be something else than a marihuana plantation of a similar size in a small apartment in the centre of a town, where also energy is il- legally tapped and neighbours complain about smell and water nuisances.

3. A woman complains that she is being stalked by someone frequently calling her number. It appears that this concerns her ex-husband calling her to stop harassing him.

In each of the cases different means may be applied for apparently a similar offence. Another example is in the following situation. A description of a suspect is developed and based on this information cell-phone data of the suspect might be tapped and historical data re- quested. The AIV (2007, p.80) refers to Jacobs with noting that previously first possible sus- pects were selected and then additional information about them was collected. Now first a huge amount of data on innocent citizens is processed and then attempted to find the most likely suspect (translation BVL). One interviewee argues that it is unjust to first request data on all cell-phones in the neighbourhood at the time of a committed crime and based on this information go after the subscribers of the cell-phones. Other interviewees find such an ap- proach useless for law enforcement since it provides very much (irrelevant) information, also from cell-phones several kilometres away. However, if no other means are available, it can be used (see LJN AQ1112 Court of Appeal The Hague).

Many would not realize that with a tap for a consecutive period of time a complete picture of someone’s life can be obtained. It may provide much more detailed information on someone than a house search. However, for a search warrant (huiszoeking), interviewees indicate that it will be much more difficult to obtain approval from the Magistrate. One of the interviewees

Commissie Strafvorderlijke gegevensvergaring in de informatiemaatschappij (Mevis commission, 2001) (Commission Data Collection for Criminal Proceedings in the Information Age)

Provided developments in information and communication technology, the Commissie

Strafvorderlijke gegevensvergaring in de informatiemaatschappij (Mevis commission) was asked in

2000 by the Minister of Justice to investigate the extent to which the Code on Criminal Proceedings provided an adequate legal framework for those (new) means of data collec- tion and processing necessary for criminal proceedings. The commission supervised by P.A.M. Mevis recommended to introduce in the Dutch Code on Criminal Proceedings dif- ferent regimes for different types of data. It distinguished the content of the communica- tions, traffic data, identifying data, and other data, and identified the difference between historical data and realtime data. Most of their recommendations were introduced in the current Code.

argues that for a phone tap a similar strict regime as for a search warrant should apply. Simi- larly, one may wonder why a search of a shed or the secret observation at a market requires higher authorities to approve and stricter procedures than systematic observation (Buruma 2001, p. 42).

The number of taps that are executed on a daily basis, 1681 taps (Minister of Justice 2008), suggests that either a significant part of law enforcement is involved in the tapping business, or that a significant part of these taps is placed without being used. The latter situation would imply a disproportionate interference with the right to privacy.

For telecommunication data the extent to which the proportionality criterion is being ad- hered to may be questioned. Concerning telecommunications data, a public prosecutor typi- cally does not specify what data can be processed from a cell-phone tap. A typical order, to which the Magistrate consents, includes all data that is processed in telecommunication: the content of conversations, identification data, traffic data and location data. Together, these data may have a greater interference with the right to privacy than only one aspect of the telecommunications data. It may very well be that the use of only one type of data is suffi- cient to fulfil the law enforcement task. The proportionality requirement is in such instance inadequately fulfilled.

Type of data (Wetboek van Straf- vordering)21

Examples To be used if suspicion of: Decision/ Requisition by/

(reported by)

Max. period requisition

(+ ext)

Sv article

Identifying data Name, address, sex, birth date, admin- istrative characteristics22

Crime, organised crime with major impact on public order, or terrorism

Law enforcement officer (Law enforcement officer re- ports)

- 126nc; 126uc;

126zk;

User data2324 _{Name, address, phone number}

(MSISDN), IMSI code, EMEI code, and type of service used25

Crime, organised crime with major impact on public order, or terrorism

Law enforcement officer (Public Prosecutor reports)

- 126na; 126ua;

126zi; Traffic data2627 _{Historic traffic data (including location}

data of cell-phone if actively been used) (incl. date and time of use); and future traffic data

Serious crime28_{, organised crime with major}

impact on public order, or terrorism

Public Prosecutor

(Public Prosecutor reports)

3 months (ex- tension possible)

126n; 126u; 126zh;

Certain stored data: other data location data of cell-phone if in stand- by mode29

Serious crime, organised crime with major im- pact on public order, or terrorism

Public Prosecutor (Public Prosecutor reports)

- 126nd(1) via 126ng(1); 126ud(1) via 126ug(1); 126zl(1) via 126zo(1) Certain stored data processed after

requisition date

location data of cell-phone if in stand- by mode

Serious crime, organised crime with major im- pact on public order, or terrorism

Public Prosecutor (Public Prosecutor reports)

4 weeks (+ 4 weeks)

126ne(1) via 126ng(1); 126ue(1) via 126ug(1); 126zm(1) via 126zo(1) Certain stored data: other data location data of cell-phone if in stand-

by mode

Other criminal fact than serious crime Magistrate

(Public Prosecutor reports)

4 weeks (+ 4 weeks)

126nd(6)

Certain stored data processed after Real-time location data of cell-phone; If the investigation of serious crime, organised Magistrate 4 weeks (+ 4 126ne(3) via 126ng(1);

21 _{In the Netherlands only art. 126n and 126na Sv are commonly used.}

22 _{Administrative characteristics are characteristics that relate the suspect and a third party to whom the data requisition is directed, or the characteristics of the services provided to the suspect.}

These may be membership number, number of an insurance, bank account number or client number (Kamerstukken 2003-2004, 29441, nr. 3, p.7)

23 _{See Wet bijzondere opsporingsbevoegdheden (§ 2.3.4)} 24 _{See Besluit verstrekking gegevens telecommunicatie}

25 _{Type of service refers to speech, fax, SMS, MMS, WAP, GPRS, among others (see Stratix 2003, p.23, 38)} 26 _{See Wet bijzondere opsporingsbevoegdheden}

27 _{See Besluit vorderen gegevens telecommunicatie}

28 _{Serious crime is in this context a crime for which preventive custody (voorlopige hechtenis) can be executed (see www.zakboekenpolitie.com).} 29 _{Since Dutch telecom providers do not store standby data. These data are not claimed by law enforcement.}

requisition date and directly (or each time within a certain period after proc- essing) available to law enforcement

real-time financial transfers crime with major impact on public order or ter- rorism requires this urgently

(Public Prosecutor reports) weeks) 126ue(3) via 126ug(1); 126zm(3) via 126zo(1)

Sensitive data Data concerning racial or ethnic origin, political opinions, religious or philoso- phical beliefs, trade-union member- ship, or concerning health or sex life

If the investigation of serious crime with major

impact on public order, organised crime with major

impact on public order or terrorism requires this urgently

Magistrate

(Public Prosecutor reports)

- 126nf(1/3); 126uf(1/2);

126zo(2/3)

Content of communication Conversation If the investigation of serious crime with major

impact on public order, organised crime with major

impact on public order or terrorism requires this urgently

Magistrate

(Public Prosecutor reports)

4 weeks (+ 4 weeks)

126m; 126t; 126zg;

Content of communication Email/ voice mail30_{/ SMS from, meant}

for, or concerning the suspect or the criminal fact

If the investigation of serious crime with major

impact on public order, organised crime with major

impact on public order or terrorism requires this urgently

Magistrate

(Public Prosecutor reports)

4 weeks (+ 4 weeks) (from interviews) 126m 126ng(2); 126ug(2); 126zo(2);

8.3.4 Principle 4: interference is only allowed if adequate and effective guarantees