By Rahul Shrivastav, Technology Reporter


Proposed amendment to intelligence and security services act in the Netherlands sparks debate over expanded powers and potential implications

The Dutch government is facing scrutiny over a proposed amendment to the intelligence and security services act, which seeks to automatically and administratively extend warrants to target victims of hackers. The addition, known as a lex specialis, brings significant changes to the existing legislation, expanding the scope of powers and widening the range of individuals and organizations to which these powers can be applied.

Currently, the Dutch law allows targeted operations on entities or individuals who are not the primary targets themselves. However, oversight bodies have emphasized the need for an elevated standard in such cases. Under the proposed amendment, the criteria for targeting non-targets would become even more lenient than those for actual targets, raising concerns among privacy advocates and legal experts.

The criteria for targeting non-targets actually become more lenient than for targeting actual targets

Under the new law: Automatic extension of warrants to hacking victims (‘non-targets’)

The new law introduces an automatic extension of warrants to include victims of hacking groups, beyond the initial target. For instance, if a warrant is issued to intercept the communications of a specific hacking organization, it would now extend to the victims of that group. Consequently, individuals whose devices are hacked by a particular group would be subject to interception or surveillance by Dutch intelligence services.

Enlarging the warrant in this way is an administrative addition which involves no further approval process, not internally, nor externally

The head of service and the minister

This administrative addition does not require any further internal or external approval process, unlike the original warrant, which undergoes internal review by the head of service and the minister. However, the ex-post regulator is notified of this administrative extension and can initiate an investigation to determine if it agrees with the addition. If the regulator disagrees, it can inform the minister and the Dutch parliament, potentially leading to a halt in the operation. In response, the services can appeal this demand to the Council of State, one of the Dutch supreme courts.

Critics argue that this approach creates a tension in the exercise of new powers, as a warrant issued for a specific organization can now be extended administratively to target unrelated individuals or internet subscriptions. Non-targets no longer benefit from an elevated standard, effectively stripping them of any protections. Furthermore, concerns have been raised regarding compliance with Article 8 of the European Convention on Human Rights (ECHR), which safeguards the right to privacy.

Experts and legal scholars are calling for a thorough examination of the proposed amendment’s implications and its alignment with recent jurisprudence, particularly in light of Article 8 ECHR. The automatic extension of warrants, coupled with limited review processes, has sparked a debate on the balance between security measures and the protection of fundamental rights.

As discussions continue, the Dutch government faces mounting pressure to address concerns about privacy, oversight, and the potential for abuse of power, highlighting the importance of striking the right balance in legislation related to surveillance and intelligence gathering.

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