IP: Watch it if you call to and from Holland (from Telecom Digest)

[Dave Farber <farber () cis upenn edu>]

nty Solomon <monty () roscom COM>
From: Monty Solomon <monty () roscom COM>
Subject: Dutch Law Goes Beyond Enabling Wiretapping; Makes It Required
Date: Thu, 16 Apr 1998 11:53:23 -0400






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


April 14, 1998


Eurobytes


By BRUNO GIUSSANI


Dutch Law Goes Beyond Enabling Wiretapping to Make It a Requirement


The 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.




Bruno Giussani at giussani () nytimes com welcomes your comments and suggestions.