DUTCH LAW GOES BEYOND ENABLING WIRETAPPING TO MAKE IT A REQUIREMENT

April 14, 1998 By BRUNO GIUSSANI

he tapping of the Internet and other new forms of digital communication by government agencies is likely to become one of the hottest issues of the year.

With the liberalization of the European telecommunications market continuing, hundreds of new companies from cable operators to Internet service providers (ISPs) are offering a large array of new services and networks. 

However, accustomed to dealing with state-run companies that used to operate all telephone lines within a country and willingly complied with requests from the police and intelligence agencies, governments now feel now they're losing their grip on telecommunications. 

And their response is: more and extended wiretapping. 

Earlier this month, the Netherlands set a controversial benchmark for official snooping on all forms of communications — including, in specific cases, private networks. Other countries, and namely those of the European Union, may follow suit. 

On April 2, the Second Chamber of the Dutch Parliament approved a new Telecommunications Act that includes a chapter intended, among other things, to force cable operators (many of which are preparing to sell phone services) and ISPs to make their networks tappable by the police and intelligence services. 

Mainly designed to implement recent decisions taken by the European Union concerning market deregulation and interconnection of telecommunication networks, the new Dutch law includes a chapter 13 labeled "Authorized Wiretapping."
The first article reads as follows: "Providers of public telecommunications networks and public telecommunications services shall not make their telecommunications networks and telecommunications services available to users unless they can be wiretapped." 

A further paragraph adds that the operator of the network or the service must supply the necessary equipment and bear its full cost, while later in the text it is stated that "one or more articles of this chapter" may apply also to private networks if they are "in fact open to third parties" — which is, for example, the case of an extranet setup. 

In monopoly times, telephone calls were routed by the phone companies "to tapping rooms where police officers diligently transcribed tape recordings," said Maurice Wessling, a spokesman for XS4all (pronounced "access for all"), one of the largest Dutch ISPS with nearly 30,000 customers. 

"They are now trying to force every single operator in the communications market to set up tapping facilities at its own expense," he said. 

XS4all and other ISPs have opposed the new provision because "we don't want to become an extension of the judicial authorities," Wessling said. 

"We recognize that it is sometimes necessary for law enforcement agencies to be able to intercept communications in order to track criminal suspects," Fred Eisner, the chairman of the Dutch association of ISPs, explained. "Yet it should be sufficient to tap networks without extending the law to services," he added. 

ISPs and telecom operators are also very sensitive to the financial consequences of setting up snooping facilities, which the Council of Central Business Organizations — an alliance of major Dutch employers — expects to be in the hundreds of millions of guilders (1 million guilders is approximately equal to $487,000). 

Legal experts and privacy watchdogs have warned that the new law provides insufficient guarantees for the protection of privacy; they also point out the already generous use of telephone taps in this country. 

A study, carried out by the scientific research and documentation center of the Dutch Ministry of Justice, revealed in 1996 that police in the Netherlands intercept more telephone calls than their counterparts in the United States, Germany or Britain. 

"In absolute figures, the Dutch tap three times more phone lines than the U.S. agencies. Imagine if you correct this figure for the population's size," Wessling said.
Henrik Kaspersen, a professor at the Institute for Informatics and Law of the Free University in Amsterdam, believes that the high rate of telephone tapping in the country is mostly "a matter of tradition: our police forces are small, therefore they tend to use means that are cheaper and need less personnel," he said.
He questioned, however, whether just expanding the principle of lawful interception to cover the new networks and services without a careful evaluation is the right way to go. 

"Over the last few years the situation has become very different," Kaspersen explained. "Where we had a unique telecom company we have now a long list of private organizations that should all cooperate smoothly with the state. It will not be an easy thing." 

"There are numerous differences between the old phone networks and the information highways," said Guikje Roethof, a liberal member of the Parliament. Indeed, digital technology allows methods of investigation — such as scanning communications for words or patterns — which could not be carried out in traditional analog voice telephony. 

"The authorities are oversimplifying the question when they argue that since they've always tapped the phone, extending this practice to the new networks and services is a no-brainer," she said. 

Roethof said that "this regulation is premature." The market liberalization "has created a lot of new small players. They may run into financial problems, and I'm not at all sure that once the tapping facilities are in place, they will open them only to the authorities." 

"We may well end up with commercial companies or even criminal organizations snooping on our communications," she said. 

Despite all these objections and criticism, the Telecommunications Act has been approved by 121 of the 150 members of the Second Chamber. Only D-66 (Roethof's party) and the Green Party opposed it. All the dissenting parties could obtain is a separate resolution giving ISPs an additional delay in setting up the technical facilities that make the tapping of Internet protocol traffic possible.
The time frame for this delay has not been defined, but "it will probably be two years," according to Henk Houtman, a spokesman for the Dutch Ministry of Transportation, Public Works and Water, whose jurisdiction includes telecommunications. 

A few weeks ago, the Ministry of the Interior sent a letter to the leaders of the four largest political parties. The letter, which strongly advocated unobstructed tapping as an essential tool of criminal investigation, seems to have played a key role in the approval of the new law. 

Vincent Van Steen, a press officer for the Dutch internal security agency, confirmed on the phone that "there has been a letter sent to the parliamentary committee, which is composed of the leaders of the four major parties." He refused to comment further on the content of the writing. 

The Lower House — the other chamber of the Dutch Parliament — now has to discuss the Telecommunications Act, yet "it is a formal body and has no authority to amend it," Kaspersen explained.

http://www.nytimes.com/library/tech/98/04/cyber/eurobytes/14euro.html