(Fwd) FC: Dutch Internet provider refuses Net-wiretap

["Arne Haeckel" <Arne.Haeckel@softcon.de>]

Hallo,
in den Niederlanden will das Justizministerium ein Exempel 
statuieren. XS4ALL soll einen Monat lang allen Traffic eines 
bestimmten Teilnehmers aufzeichnen und die Ergebnisse an die 
ermittelnde Behoerde abliefern. XS4ALL wehrt sich dagegen und will es 
auf eine Gerichtsverhandlung ankommen lassen.

Gruss Arne Haeckel

------- Forwarded Message Follows -------
Date:          Fri, 14 Nov 1997 09:15:30 -0500
To:            fight-censorship-announce@vorlon.mit.edu
From:          Declan McCullagh <declan@well.com>
Subject:       FC: Dutch Internet provider refuses Net-wiretap
Reply-to:      declan@well.com

Press release

November 13th 1997, Amsterdam, Netherlands.

XS4ALL refuses Internet tap

XS4ALL Internet is refusing to comply with an
instruction from the Dutch Ministry of Justice
that it should tap the Internet traffic of one of
its users as part of an investigation. XS4ALL has
informed the Ministry that in its view the
instruction lacks any adequate legal basis.
The company's refusal makes it liable for a
penalty but XS4ALL is hoping for a trial case to
be brought in the near future so that a court can
make a pronouncement.

On Friday October 31st, a detective and a computer
expert from the Forensic Science Laboratory issued
the instruction to XS4ALL. The Ministry of Justice
wants XS4ALL to tap for a month all Internet
traffic to and from this user and then supply the
information to the police. This covers e-mail, the
World Wide Web, news groups, IRC and all Internet
services that this person uses. XS4ALL would have
to make all the technical arrangements itself.

As far as we are aware, there is no precedent in
the Netherlands for the Ministry of Justice
issuing such a far-reaching instruction to an
Internet provider. The detectives involved also
acknowledge as much. Considering that a national
meeting of Examining judges convened to discuss
the instruction, one may appreciate just how
unprecedented this situation is. Hitherto,
instructions have mainly been confined to requests
for personal information on the basis of an e-mail
address.

XS4ALL feels obliged in principle to protect its
users and their privacy. Furthermore, XS4ALL has a
commercial interest, since it must not run the
risk of action being brought by users under Civil
Law on account of unlawful deeds. This could
happen with such an intervention by the provider
which is not based in law. Finally, it is
important from the social point of view that means
of investigation have adequate statutory basis. To
comply with the instruction could act as an
undesirable precedent which could have a major
impact on the privacy of all Internet users in the
Netherlands.

XS4ALL has no view on the nature of the
investigation itself or the alleged crimes. It is
happy to leave the court to decide that. Nor will
XS4ALL make any comment on the content of the
study or the region in which this is occurring for
it is not its intention that the investigation
should founder. XS4ALL has proposed in vain to the
examining judge that the instruction be recast in
terms which ensures the legal objections are
catered for.

The Ministry of Justice based its claim on Article
125i of the Penal Code. This article was
introduced in 1993 as part of the Computer Crime
Act. It gives the examining judge the option of
advising third parties during statutory
preliminary investigations to provide data stored
in computers in the interest of establishing the
truth. According to legal history, it was never
the intention to apply this provision to an
instruction focused on the future. Legislators are
still working to fill this gap in the arsenal of
detection methods, by analogy with the Ministry of
Justice tapping phone lines (125g of the Penal
Code). The Dutch Constitution and the European
Convention on the Protection of Human Rights
demand a precise statutory basis for violating
basic rights such as privacy and confidentiality
of correspondence. The Ministry clearly does not
wish to wait for this and is now attempting to use
Article 125i of the Penal Code, which is not
intended for this purpose, to compel providers
themselves to start tapping suspect users. The
Ministry of Justice is taking the risk of the
prosecution of X, in the context of which the
instruction was issued to XS4ALL, running aground
on account of using illegal detection methods.
Here, again, XS4ALL does not wish to be liable in
any respect in this matter.

For information please contact:

XS4ALL
Maurice Wessling
email: maurice@xs4all.nl
http://www.xs4all.nl/


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Arne.Haeckel@SOFTCON.de      

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