After it recently emerged that information about 1.8 million Dutch people’s calls had been purloined by the National Security Agency, the country’s home affairs minister, Ronald Plasterk, expressed annoyance that the U.S. agency hadn’t asked first. However, he said, the monitoring “only concerns metadata, like who called who.”
Dutch lawyers and journalists aren’t so quite so sanguine about the matter, largely because their professions require confidentiality – something you can’t guarantee clients and sources when you’re potentially being monitored. On Wednesday, the Dutch Association of Defense Counsels and the Dutch Association of Journalists joined a broad coalition in suing Plasterk and the country’s government, demanding that the state stop using data recorded in the Netherlands by the NSA.
The coalition also includes internet freedom activist Rop Gonggrijp, security expert Jeroen van Beek, advocate Bart Nooitgedagt, investigative journalist Brenno de Winter and tech law expert Mathieu Paapst, as well as the Internet Society Netherlands Chapter and Privacy First Foundation.
At the heart of the complaint is a potential legal sleight-of-hand that many (including me) have long suspected is in play – namely that intelligence agencies are bypassing their own countries’ privacy laws by getting allies to spy on their citizens for them.
“It seems that the Netherlands ‘shopped around’ at foreign governments for data it cannot acquire here legally,” van Beek said in a statement. “Nobody seems to be accountable for or is transparent about what exactly happens in the Netherlands. The court must critically examine this.”
Daphne van der Kroft, public policy advisor at the coalition’s law firm, Bureau Brandeis (yes, named after the legendary American jurist), suggested Plasterk and the Dutch state were “whitewashing” data.
“He has acknowledged in our parliament that the way the NSA collects information is not consistent with Dutch law, but at the same time he says it might be possible that Dutch services are using that data, because we don’t know where it’s coming from,” van der Kroft told me. “We are demanding that the Dutch state – and he’s the minister that’s responsible – stops using this data or that they guarantee that it is collected in compliance with Dutch law.”
“Every country can say for itself whether [its] own intelligence services are acting in compliance with national law.”
This is not the first such case to arise in Europe following Edward Snowden’s NSA revelations. The activist group Privacy International has attempted to sue the British government over data-sharing between the NSA and its UK counterpart, GCHQ. However, it had to approach a secret court to do this, and it got no response.
It is now trying a different angle, complaining to the OECD about the collaboration of telecommunications firms with the NSA. A separate group, Privacy not Prism, has skipped the secret court bit and gone straight to the European Court of Human Rights.
Meanwhile, the UK Law Society complained in October that the NSA revelations were having a “chilling effect” on the justice system there, because potential complainants against the state were “becoming increasingly concerned about whether the information they share with their lawyers will remain confidential.”