Principle 3: Interference should be proportionate to the legitimate

The WIV 2002 provides the decision framework with respect to proportionality and subsidi- arity concerning each of the special authorities for specific cases. This general framework is further developed in internal procedures. These provide for each special means how to de- cide to use them. It addresses the procedure, the objective, the instances when a special means can be used, required permissions, the request to use it, the test, the decision, notifica- tion, relevant legislation and how it should be used. Concerning proportionality and subsidi- arity, advise is provided by a department focusing on the use of special authorities (directie Bi-

Commissie bestuurlijke evaluatie Algemene Inlichtingen- en Veiligheidsdienst

(Commission Administrative Evaluation Dutch Intelligence and Security Services; Commission Havermans)

9/11 and several other events (assassination Fortuyn, decision of parliament to par- ticipate in the war in Iraq) has resulted in increased attention to the functioning of the Intelligence and Security Services in the Netherlands. In 2003, after the parliamentary discussion on the marriage of Prince Johan Friso and Miss Wisse Smit, the Minister of the Interior introduced and commenced the ‘Commission Administrative Evalua- tion Dutch Intelligence and Security Services’ to perform an administrative evaluation of the legal tasks, responsibilities, authorities, and means available to the AIVD and the way the AIVD anticipates on these, provided the changes in society. Three ques- tions were leading in this research:

1. Which expectations does the political-administrative environment have about the task of the AIVD, provided the changes within society?

2. How does the AIVD execute its tasks and responsibilities and how can these be improved?

3. Are the authorities and available means (both quantitative and qualitative) to the AVID sufficient to meet the requirements and expectations?

jzondere Inlichtingenmiddelen) (Commissie bestuurlijke evaluatie AIVD 2004, p. 126). Figure 7.1

provides an overview of the decision making process within the AIVD, ultimately resulting in an approved task assignment. In 2004, the Commission bestuurlijke evaluatie AIVD con- firmed that the AIVD is strictly working according to these procedures concerning the use of special authorities (see Commissie bestuurlijke evaluatie AIVD 2004, p. 126).

Criterion of subsidiary

The ECtHR has ruled that the purpose for which the personal data are processed can in all fairness not be realised in another manner, which has a less negative impact for the person concerned (Wbp 25892 nr. 3; see also Commissie van Toezicht, jaarverslag 2004-2005, 32- 33). The subsidiary criterion rules that if it is decided that the processing of (personal) data is needed through a means falling under the special means regime, then the national security and intelligence service is required to select adequate means that are the least harmful for the person or party concerned (art. 31.2 WIV 2002). Use of special authorities is not allowed if they unreasonably disadvantage the individual concerned (art. 31 WIV).

The use of special authorities is only allowed if the data cannot or not in time be gathered through public sources or information sources to which the security and intelligence service has been granted a right of access (kennisneming) (art. 31 WIV).

Criterion of proportionality

In addition to the requirement of subsidiary, the use of special means also need to be pro- portionate to the legitimate aim pursued (art. 31.4 WIV 2002; Explanatory Memorandum WIV 2002, p.53). The Explanatory Memorandum provides the following example: If the aim can be reached to obtain data concerning people visiting a specific house through a camera outside the house, then the use of a camera inside the house is disproportionate to the aim pursued. This is the norm as provided in the law. The Explanatory Memorandum clarifies that the norm is so general since it needs to be useful in a wide variety of situations (Ex- planatory Memorandum WIV 2002, p. 51).

The Minister of the Interior has assessed that it is impossible to rank the special authorities. He argued that the execution of one special power is not necessarily more or less infringing one’s right to privacy than others. For example, is observing and following someone for four weeks more infringing than a phone tap for four weeks? (Explanatory Memorandum WIV 2002, p. 41). Is video observation (static observation) a greater interference in the private life than tracing a person (dynamic observation)? (Explanatory Memorandum WIV 2002, p. 51). The Dutch data protection agency (College bescherming persoonsgegevens) holds as a rule of thumb that a citizen’s expectation of privacy in public areas is generally less than in his house or at work (CBP 2004, p.9). Privacy infringing surveillance may include the observation of indi- viduals in places they have a high expectation of privacy (CBP 2004, p.23). Also in chapter 3 we cited several researches and ECtHR rulings that indicate that video surveillance in public areas is considered less infringing than real-time tracking.

The Explanatory Memorandum of the WIV 2002 further adds an additional requirement to the principles of the European Court: the most effective and efficient means available should be used (Explanatory Memorandum WIV 2002, p. 52). An average phone tap has been as-

Duty of care

The WIV 2002 rules that the use of a special means is immediately stopped if the aim pur- sued has been reached or if the aim can be reached with less intruding means (art.. 32). The Adviescommissie Informatiestromen Veiligheid (AIV 2007, p.58), however, did not find a clear decision framework (toetsingskader) to which data requests of AIVD or law enforcement should adhere, for example on the process of requesting data.

According to both public and private data providers often the request for information is non-specific, lacking a (sound) formal basis, and concerns an unreasonably large amount of data. In addition, the research found that ‘more than once’ identical requests were made by different agencies (AIV 2007, pp. 65, 102). Together, this made the Commission conclude that the data acquisition process of the intelligence and law enforcement is ineffective. Each agency uses a different approach, and there is uncontrolled increase of the number of data requests (interviewees in this research were unable to explain this development).

Because the data requesters do not or only pay marginally for the data, they are not con- fronted with the true financial consequences of their requests. Therefore no incentive exists to cope effectively or efficiently with the data requests (AIV 2007, p. 100).

Available means and required permissions

The decision making process concerning the national security and intelligence service takes place in the periodic meeting of the responsible Ministers (i.e. of the interior, defence, and the prime-minister, and if necessary other Ministers). Dutch law distinguishes between the infringement of the means and the authority required to consent.

Not all types of special means require the same permission, thus at least suggesting an order of infringement. The greater the infringement the higher the authority that needs to consent. Table 7-1 shows the means available under the special means provision of the WIV 2002 Act. For the opening of a letter the Court in The Hague needs to consent. The next most sensitive category is related to intrusions to one’s home, such as searching homes or install- ing observation equipment in homes. Also wiretapping is within this category. The following category includes the physical surveillance, and undercover activities. The least sensitive cate- gory includes (location) data of telecom providers, amongst others. The Minister assessed that the processing of traffic data is less infringing than a phone tap where private conversa- tions can be heard (Explanatory Memorandum WIV 2002, p. 47). Therefore, for a traffic data request a lower authority is required than for a phone tap.

Activity Period of activity Permission of

Opening paper letters Max. of three months per request

Court in The Hague (art. 23) Installing observation means in homes Max. of three

months per request

Minister of the Interior in writing (art. 20.3)

Searching homes Max. of three days Minister of the Interior in writing

Wiring, receiving, recording, eaves- dropping including deciphering encryp- tion (of conversations, telecommunica- tion or data transmission through an automated work)

Max. of three months per request

Minister of the Interior (art. 25)

Recording non cable telecommunica- tion (personal data)

Max. of three months per request

Minister of the Interior (art. 26. 4)

Searching places and objects Max. of three days Minister of the Interior or on his behalf the head of the AIVD (art. 22.1 a)

Undercover activities Not specified Minister of the Interior or on his behalf the head of the AIVD (art. 21)

Observing people Max. of three

months per request

Minister of the Interior or on his be- half the head of the AIVD (art. 20.1 a)

Tracking people Max. of three

months per request Minister of the Interior or on his behalf the head of the AIVD (art. 20.1. b)

Installing observation means (no homes)

Head of the AIVD (art. 30.1)

Table 7-1 Availability of means for AIVD and required permission

Also within the ‘data category’ different regimes exist (see Table 7-2). Sensitive data, before categorised as special personal data category, can only be processed if this is inevitable. Other sensitive information, information concerning labour union membership or membership of a political party, can be requested by an AIVD officer, however. The Minister thinks this devi- ating policy is justified because someone’s political preferences might be crucial in the as- sessment of the potential danger for national security (Explanatory Memorandum WIV 2002). Similarly, it is inevitable to process sensitive personal data concerning religious or phi- losophical beliefs if these are used to justify anti-democratic, dangerous to the State, or anti- military activities, or in the instance of terrorist activities of religious (splinter) groups (Ex- planatory Memorandum WIV 2002).

Further, for the processing of the content of email or conversations consent of Minister of the Interior is needed. The Head of the AIVD can request other processed data, including

Type of data (WIV 2002) Examples Decision/ Requisition by WIV 2002 ar- ticle

User data Name, address, number

and type of service used

Head of the AIVD or on his behalf

Art. 29

Identifying data Name, address, phone number, kind of service used, IMEI-code, type of services used, identifying data of subscriber (paying the bill), bank account number Head of the AIVD Art. 28(1);; Bes- luit ex artikel 28 WIV 2002, art. 2, Besluit ex art. 28 WIV (art. 2(f))

Traffic data Historical and future loca- tion data of cell-phone if actively been used, date and time of use

Head of the AIVD Art. 28(1); Be- sluit ex artikel 28 WIV 2002, art. 2 Content of communica- tions Content of an email or

voice mail17 Minister of the _Interior Art. 25

Certain stored data (3): other data

(Historical and future) lo- cation data of cell-phone in stand-by mode proc- essed by telecommunica- tion provider

Not allowed Besluit ex ar- tikel 28 WIV 2002

Data processed after req- uisition date and directly available to national secu- rity and intelligence

Real-time location data of cell-phone if actively been used

Head of the AIVD

Art. 28(1&4)

Sensitive data (1) Data concerning racial or ethnic origin, religious or philosophical beliefs, or concerning health or sex life

Only allowed if inevitable

Art. 13(3)

Sensitive data (2) Data concerning political opinions, trade-union membership

AIVD em- ployee

Art. 17(1)

Other data Data on savings, earnings, education, job (history), club membership, etc.

AIVD em-

ployee Art. 17(1)

Table 7-2 Sensitiveness of data according to WIV 2002

For how long can location information of mobile devices be tracked and traced?

Table 7-1 shows the differences in the duration of the mandate for different data categories. Searches of objects and homes can last for maximum three days. The other special authori- ties have the standard maximum of three months. However, for telecommunication data no

maximum period is specified. The only requirement is that these data cannot be processed any longer than necessary.

The proposed Dutch implementation of the Data Retention Directive requires telecom pro- viders to store telecom data for at least 18 months (Kamerstukken 2006-2007 nr. 31145)18_.

The categorisation of required consent for different activities may imply an order of privacy infringements. With respect to data, the following order was found in the WIV 2002 (from the most sensitive down):

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

- Information concerning racial or ethnic origin, religious or philosophical beliefs, or concerning health or sex life

- Content of an email or voice mail

- Real-time location data of cell-phone if actively used

- Historical location data of cell-phone if actively been used (incl. date and time of use) - Name, address, phone number, kind of service used

- Data concerning political opinions, trade-union membership

Further, from the subsidiary principle follows that if an interest of the AIVD can be satisfied through identifying information, there is no need to claim traffic data or location data. Simi- larly, if traffic data can satisfy the requirements, there is no need to process the more detailed location data. If historical location data can satisfy the needs than real-time location data should not be requested.

7.3.4 Principle 4: Interference is only allowed if adequate and effective guarantees