On the 21st of March 2018, the Dutch will head to the polls to vote in a referendum on repealing the so-called ‘tapping’ law. This act, which regulates and expands the ability of the security and intelligence services to access and retain electronic communication data, passed through the Staten-Generaal in July 2017. However, the collection of 384,126 valid requests by members of the public, civil society and politicians requires a non-binding referendum to be held on this legislation. While the outcome of this referendum is purely advisory, the challenge to this law highlights its controversial nature. Both France and the United Kingdom have introduced similar laws in the last few years and the debate surrounding these remains fierce. Ahead of the referendum in the Netherlands, an assessment of the arguments supporting and critiquing these laws can highlight the main areas of contention that surround the expansion of state surveillance powers more generally.

Expanding Surveillance Legislation in France

Following the attacks on the Charlie Hebdo offices in January 2015, then French Prime Minister Manuel Valls argued that the expansion of surveillance powers, particularly in the realm of electronic communications, was vital to combat the intense and urgent threat that terrorism posed to national security. A little over two months later, a new intelligence act passed through the Parliament. The Act was heralded as a major achievement by the government as it “governs the activity of the intelligence services and gives them the resources to fight terrorism effectively whilst protecting fundamental freedoms” through increased legislative and judicial oversight of state surveillance.

However, since the passage of this Act, Amnesty International France and several other civil society organisations, have sent a letter to the French Constitutional Court opposing this legislation, highlighting that as the law allows for indiscriminate collection and retention of mass communications, it violates the right to privacy and freedom of speech. Le Figaro have also criticised the legitimacy of the legislation by suggesting that the fight against terrorism has been used as an excuse to engage in mass surveillance without any judicial authorisation. Journalist Marcela Iacub further condemned the new law, claiming that “to capture a few bombers, we do not hesitate to take the entire population hostage, like in the worst totalitarian nightmare”.

Surveillance in the United Kingdom

The leaks from Edward Snowden in 2013 jolted the British government into expanding the law on their own surveillance practices through the 2016 Investigatory Powers Act. UK Home Secretary Amber Rudd highlights that the rapid technological development experienced since the turn of the century has brought a host of new capabilities, such as bulk acquisition of electronic communications, that can be used by these agencies to deal with national security threats. However, the government recognized that this had not been matched by legislation regulating the use of these powers. Telegraph journalist Jonathon Evans argues that this legislation provides greater clarity and transparency on the powers of the security and intelligence services than before. For example, the creation of the position of the Investigatory Powers Commissioner who can alert individuals when they have suffered as a result of state surveillance activity.

Despite these claims, the 2016 Investigatory Powers Act has faced staunch opposition. In June 2017, a challenge to the legality of the Act through judicial review was accepted by the UK High Court following a crowdfunding initiative by the civil society organisation Liberty. Liberty argue that key provisions within the bill, such as the one which requires internet service providers to hand over the internet history of their users to state agencies, is disproportionate. Moreover, the Act has been heavily criticised by the media for being passed through Parliament without opportunity for substantial public debate due to the distraction presented by Brexit.

In the months and weeks leading up to the Dutch referendum, these well-worn arguments surrounding the delicate balance between security and privacy in the realm of surveillance are likely to resurface. The UK and France continue to come under heavy fire from the media, the public and human rights and civil liberty activists. The extent to which the Dutch are the next targets remains to be seen.

As the Netherlands is discussing their intelligence community’s ‘surveillance powers’, the Research Group Intelligence and Security would like to understand what these discussions look like in other European countries. Aimee Feeney studied British and French discussions about special powers for their intelligence and security services.