XS4ALL

From Hack Story

Amsterdam, 5 november 1998.

XS4ALL to appear in Court

XS4ALL has been summoned to appear in Court in Utrecht on 20 November 1998 in connection with its refusal to assist with an Internet tap.

The facts

In November 1997, XS4ALL refused to comply with an order of the Ministry of Justice to tap the Internet communications of one of its users in connection with a criminal investigation. XS4ALL takes the view that there are insufficient legal grounds for the order. XS4ALL therefore regards the order as an illegal method of investigation. On 31 October 1997, a detective and a computer expert from the Forensic Science Laboratory delivered the order to XS4ALL. The Ministry of Justice wanted XS4ALL to tap all Internet communications to and from the user for a month, and pass the information on to the police. This would cover e-mail, World Wide Web, news groups, IRC and all other Internet services used by this person. XS4ALL was to make all necessary technical provisions itself.

The reason for refusing

XS4ALL does not wish to cooperate with invasions of privacy without an adequate legal basis. Furthermore, XS4ALL has a commercial interest, in that it cannot risk its users taking civil actions against it for acting unlawfully. This could happen in the event of a provider making an intervention like this without a foundation in law. Cooperating with the order could set an undesirable precedent with far-reaching consequences for the privacy of all Internet users in the Netherlands.

The legal basis for the order

The Ministry of Justice based its order on Article 125(i) of the Netherlands Code of Criminal Procedure (Wetboek van Strafvordering). This Article was introduced in 1993 as part of the Computer Crime Act. It gives examining magistrates the power, during preliminary inquiries, to order third parties to hand over data stored in computers in the interests of reaching the truth. The history of the legislation shows that it was never intended that this provision should be used for orders covering future periods. The legislature is still working on provisions to fill that gap in the arsenal of investigation methods, by analogy with the tapping of telephone conversations (Article 125(g), Code of Criminal Procedure). The Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms require a precise legal basis for any invasions of fundamental rights such as privacy and the privacy of correspondence.

Telecommunications Act

The First Chamber has very recently passed the new Telecommunications Act. This means tapping Internet communications will become legally possible in the near future. At a conference organized by XS4ALL and De Balie in February 1998, it was clear that lawyers and market participants are very critical of this new legislation. For example, the government has never said just why large-scale tapping, including of Internet communications, is supposed to be an effective, and cost-effective method of investigation. A recent report commissioned by the European Parliament shows that the European Union has collaborated with the American FBI to plan an extensive European tapping network, without consulting national parliaments. The new Telecommunications Act creates the necessary conditions for such a network.

More information

The case against XS4ALL will be heard on Friday, 20 November at 11 a.m. in de District Court, Hamburgerstraat 28, Utrecht, Netherlands.