“De Sleepwet”: Why five students are trying to protect the privacy of Dutch citizens

A revised version of the Dutch law on intelligence and security is challenged by five students, because it violates the right to privacy. They started a campaign with the goal to enable a referendum, in an effort to protect the privacy of Dutch citizens.

“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” This quote by NSA whistleblower Edward Snowden from 2015[1] was never more relevant for Dutch society than in the past months. With the current threat of terrorism in mind, the Dutch Senate approved a revised version of the “Wet op de inlichtingen- en veiligheidsdiensten” (the Dutch law on intelligence and security, in short Wiv) on the 11^th of July of this year[2]. The new version of the law, which replaces the 2002 edition and is meant to improve our abilities to combat terrorism, entitles the government to several questionable intrusions regarding the privacy of Dutch citizens. Among other changes, the government intelligence agencies (AIVD and MIVD) are now allowed to:

• Tap online communication from a whole neighborhood, if a single suspicious person is living there.
• Hack all automated devices, as for instance your smartphone, computer, and smart-tv.
• Create a secret DNA-database that every citizen can be added to.
• Share collected data with foreign intelligence services without analyzing them first[3].

Because of the resemblance with a trawl (“sleepnet” in Dutch) collecting our data, the law was coined “Sleepwet” (Trawl-law).

The referendum

Five students started collecting signatures in August, with the ultimate goal of forcing the government to hold an advisory referendum about the law. They do not want the law to take effect as it is, but aim for the government to revise it again and make sure that it does not interfere with our right to privacy. In the first round 10.000 signatures were needed, and in the subsequent round, another 300.000. After announcing their plans on their website, and launching their Facebook page “Referendum over de Sleepwet”, the idea was quickly picked up by several organizations and political parties that shared their concerns and publicly backed the campaign[4]. The first 10.000 signatures were quickly collected, but the second round was (obviously) a lot more challenging. For a long time it seemed that, despite quite some media attention, they would not reach 300.000 signatures before their deadline on the 16^th of October. Until they managed to get the attention of Arjen Lubach, the host of the extremely popular Dutch political satire show “Zondag met Lubach”. In his show he addressed the privacy concerns of “De Sleepwet” (Lubach 2017).  As a result of this episode the servers of the signing website overloaded, and in the following days Dutch mainstream media like NRC, Trouw, De Telegraaf and NOS all covered the subject. Not long after this, the required 300.000 signatures were placed, with a final count of over 400.000 at the October 16^th deadline. Just recently, the government confirmed that the referendum will definitively take place (Van den Dool).

Dutch readers can watch the video by Arjen Lubach

Why is “De Sleepwet” a problem?

With the large amount of terrorist attacks in mind, one might think that this law is a good thing. After all it (supposedly) helps to keep us safe, and, as a lot of proponents of the law might say: “I have nothing to hide”. But, as Edward Snowden pointed out with his quote, privacy is a human right, just like freedom of speech. And more data will not necessarily keep us safer.
In his show Lubach not only mentions the consequences of the law for the innocent citizen, he also brings up that news coverage on recent terrorist attacks often reports that the perpetrator was already known by intelligence services, which means that they are already capable to trace these people (Butler 5). The Netherlands is not the first country where a similar law has been introduced. The U.K. government accepted the Investigatory Powers Act in November 2016, which has been critiqued for comparable reasons as the Dutch version has, like vague (and therefore multi-interpretable) language, privacy failures and overly broad intrusive powers (Lomas). Moreover it turns out that more data might even have a negative effect on the ability to find potential threats. A leaked NSA document, obtained by The Intercept from Edward Snowden, stated that 97% of the data that was collected was not viewed by the authorities. This overload of data that consequently could not be analyzed might lead to missing essential clues about a potential threat (Gallagher).

Mass surveillance and privacy: some consequences

Last year Dutch journalists Maurits Martijn and Dimitri Tokmetzis wrote the book “Je hebt wél iets te verbergen” (you do have something to hide), in an effort to create awareness among their readers about their (lack of) online privacy. Martijn and Tokmetzis focus mostly on companies like Facebook and Google and government services, other than intelligence units, but focus on national safety issues as well. In response to the leaked NSA documents governments have claimed that they “only look at metadata”, which, according to them does not violate the right to privacy. Nonetheless, in an experiment together with Bits of Freedom these journalists show that metadata can in fact expose a substantial amount of personal data (Martijn and Tokmetzis 113-119).
Cheney-Lippold elaborates on the possible consequences of this idea with his explanation of the algorithmic identity, the ability of an algorithm to determine the new conditions of possibilities of users’ lives (167). As a result, completely innocent citizens, who happen to live in the same neighborhood as a suspect of a threat, whose data is caught by the trawl of “De Sleepwet” can suffer from the consequences of this. Butler is going even further by claiming that a large amount of research over the years has proved that when one is subject to surveillance and therefore has the feeling that one is being watched, they are less likely to express themselves in a way not according with the majority. Without privacy, one would therefore not be able to develop and spread ideas that do not fit the masses. Mass surveillance would in this understanding kill democracy (Butler 20-27).
Moreover, recent studies prove that individuals subject to mass surveillance feel that communication via internet is in the public sphere, and therefore are not eager to share uncommon thoughts (called the chilling effect), leading to a limited form of democracy (Penney). 62% of those respondents stated that they would be less likely to speak or write about certain topics. An important note here is that all of this concerns legal topics. 78% agreed that government surveillance would make them more careful about what they say, and additionally 78% agreed that they would also be more careful in what they search for (Penney 4-6). Already in 2001 Solove addresses this problem from a different view. Solove argues that the problem of mass surveillance is not the fact that one is being watched, nor the lack of ownership of one’s information, but rather the fact that we cannot control the way in which it is collected and used. This causes the fear of mischievous intentions or extreme social control, a thought that one might relate to Big Brother (Solove 1461-1462).
Taking into account the aforementioned arguments, it is not surprising that a law like “De Sleepwet” is subject to criticism.

What happens now?

The referendum will be held on March 21^st 2018. It is an advisory referendum, which means that the government is not legally forced to act on the results. Nevertheless it is uncommon that a government does not act on the results of a referendum like this, as long as the results are valid. It is important to note that the initiators of the referendum do not want to block the law as a whole. Instead, they want the government to redesign the law to the extent that it does not interfere with the right of privacy, and is clear enough for a committee to effectively evaluate deployment of the new tools that intelligence services will be allowed to use. All that remains is hoping that the turn-out for the referendum will be high enough, and that the public will vote against the current version of the law. Hopefully this will be enough for the government to reconsider “De Sleepwet”.

References

Butler, Israel. Security Through Human Rights. Berlin: Civil Liberties Union for Europe, 2017.

Cheney-Lippold, John. “A new algorithmic identity: Soft biopolitics and the modulation of control.” Theory, Culture & Society 28.6 (2011): 164-181.

Gallagher, Ryan. “Facing data deluge, secret U.K. spying report warned of intelligence failure.” The Intercept. 7 June 2016. Accessed 2 November 2017. <https://theintercept.com/2016/06/07/mi5-gchq-digint-surveillance-data-deluge/>.

Lomas, Natascha. “UK Surveillance Powers Bill Slammed For Privacy, Clarity And Targeting Failures.” TechCrunch. 9 February 2016. Accessed 2 November 2017. <https://techcrunch.com/2016/02/09/uk-ip-bill-slammed-for-privacy-clarity-and-targeting-failures/>.

Lubach, Arjen. “Sleepwet – Zondag met Lubach (S07).” YouTube. 1 October 2017. Accessed on 2 November 2017. <https://www.youtube.com/watch?v=plLyjO0Qt7k>.

Martijn, Maurits, and Dimitri Tokmetzis. Je hebt wél iets te verbergen. Amsterdam: De Correspondent, 2016.

Penney, Jonathon. “Internet surveillance, regulation, and chilling effects online: A comparative case study.” Internet Policy Review 6.2 (2017).

Solove, Daniel J. “Privacy and power: Computer databases and metaphors for information privacy.” Stanford Law Review 53.6 (2001): 1393-1462.

Van den Dool, Pim. “Referendum over sleepwet gaat definitief door.” NRC. 1 November 2017. Accessed on 2 November 2017. <https://www.nrc.nl/nieuws/2017/11/01/referendum-over-inlichtingendiensten-gaat-definitief-door-a1579482>.