Three weeks ago (June 25, 2012) our state secretary of the ministry of Safety and Justice answered parliamentary questions about ‘wiretapping social media services and online privacy’. A parliamentary member repeatedly requested (four times in total) statistics about the use of ‘social media wiretaps’ in collecting evidence by law enforcement authorities. Once again the Dutch state secretary Mr. Teeven refused to provide these statistics, stating that it would harm criminal investigations and prosecutions. Our minister of Safety and Justice also refused to provide transparency about ‘social media
wiretaps’ last Sunday (August 12 2012), according to this article on the popular Dutch news website Nu.nl. In this blog post I will make several observations on the subject. First of all, I believe it is wrong to speak of ‘social media wiretaps’ and secondly, in my opinion, the government should provide these statistics.
Social media wiretaps?
The parliamentary member who sent the written questions to the cabinet members responsible assumed that communication via social media services can be wiretapped, just as public (electronic) telecommunication services can. This is however not the case, as an electronic communication provider is, legally speaking, different to an electronic public telecommunication service or network provider. Not all electronic communication
providers have to change their infrastructure to facilitate wiretapping, unlike public electronic telecommunication service providers. They do, however, have to comply with requests for the collection of data.
One of the most common grounds for data collection requests by law enforcement is the collection of user data or registration data on the basis of article 126na, 126nc or 126n of the Dutch Code of Criminal Procedure. For law enforcement officials it is possible to
collect all other data on the grounds of article 126nd of the Dutch Code of Criminal Procedure, except ‘sensitive data’ such as data about the religious beliefs or health of an individual and stored communication data. Another commonly used investigatory power is article 126ng(2) of the Dutch Code of Criminal Procedure by which stored communication data – such as ‘private messages’ that are sent from one person to another via social media services – can be collected by law enforcement authorities.
In sum, it is (so far) not possible to legally wiretap a social media service without its cooperation, although law enforcement authorities can request this type of data from social media services.
Transparency about online data collection
In my view data collection from online social media services and other communication providers will become an increasingly important investigatory power of law enforcement authorities. There are two important reasons for this. The first reason is that people use
more and more online communication services to communicate with each other. It is difficult to wiretap all these different services and sometimes it is not legally (and some say technically) possible to force these services to place a wiretap. The second reason is that encryption makes data over Internet wiretaps unreadable for law enforcement authorities. By having that data collected by communication service providers directly, law enforcement authorities can obtain the communication data anyway (this is described in more detail in my (Dutch) article (.pdf) about Internet wiretaps). Note that the same trend is developing overseas, for example in the United States. Read for example this paper on SSRN from Peter Swire.
For the past couple of years – and because of the asserted pressure of members of the parliament and civil rights movements – our government has provided statistics about the use of (Internet) wiretaps. Although these figures are often misinterpreted by the media, they do provide an insight into the use of investigatory powers by law enforcement and also a reason to request an explanation from the cabinet members responsible.
Because online data collection partly replaces the investigatory technique of wiretapping, I believe it is important and logical to provide statistics about the use of this investigatory power as well. I do not see how providing this statistical data would harm investigations. Such statistical data would only tell us how often these privacy infringing investigatory powers are used. Therefore in my opinion the cabinet member(s) responsible should try their best to provide more transparency about online data collection, rather than using weak arguments to support their refusals to provide statistics.
This blog post is a crosspost from Leiden Law Blog.