To: cyber-rights@ecn.org
From: Ferry Byte
Subject: XS4ALL refuses Internet tap
Sender: owner-cyber-rights@ecn.org
Reply-To: cyber-rights@ecn.org
Date: Fri, 14 Nov 1997 13:21:42 +0000
From: Hacking In Progress
Subject: File 3--XS4ALL refuses Internet tap
Press release
November 13th 1997, Amsterdam, Netherlands.
XS4ALL refuses Internet tap
XS4ALL Internet is refusing to comply with an instruction from the
Dutch Ministry of Justice that it should tap the Internet traffic
of one of its users as part of an investigation. XS4ALL has
informed the Ministry that in its view the instruction lacks any
adequate legal basis. The company's refusal makes it liable for a
penalty but XS4ALL is hoping for a trial case to be brought in the
near future so that a court can make a pronouncement.
On Friday October 31st, a detective and a computer expert from the
Forensic Science Laboratory issued the instruction to XS4ALL. The
Ministry of Justice wants XS4ALL to tap for a month all Internet
traffic to and from this user and then supply the information to
the police. This covers e-mail, the World Wide Web, news groups,
IRC and all Internet services that this person uses. XS4ALL would
have to make all the technical arrangements itself.
As far as we are aware, there is no precedent in the Netherlands
for the Ministry of Justice issuing such a far-reaching
instruction to an Internet provider. The detectives involved also
acknowledge as much. Considering that a national meeting of
Examining judges convened to discuss the instruction, one may
appreciate just how unprecedented this situation is. Hitherto,
instructions have mainly been confined to requests for personal
information on the basis of an e-mail address.
XS4ALL feels obliged in principle to protect its users and their
privacy. Furthermore, XS4ALL has a commercial interest, since it
must not run the risk of action being brought by users under Civil
Law on account of unlawful deeds. This could happen with such an
intervention by the provider which is not based in law. Finally,
it is important from the social point of view that means of
investigation have adequate statutory basis. To comply with the
instruction could act as an undesirable precedent which could have
a major impact on the privacy of all Internet users in the
Netherlands.
XS4ALL has no view on the nature of the investigation itself or
the alleged crimes. It is happy to leave the court to decide that.
Nor will XS4ALL make any comment on the content of the study or
the region in which this is occurring for it is not its intention
that the investigation should founder. XS4ALL has proposed in vain
to the examining judge that the instruction be recast in terms
which ensures the legal objections are catered for.
The Ministry of Justice based its claim on Article 125i of the
Penal Code. This article was introduced in 1993 as part of the
Computer Crime Act. It gives the examining judge the option of
advising third parties during statutory preliminary investigations
to provide data stored in computers in the interest of
establishing the truth. According to legal history, it was never
the intention to apply this provision to an instruction focused on
the future. Legislators are still working to fill this gap in the
arsenal of detection methods, by analogy with the Ministry of
Justice tapping phone lines (125g of the Penal Code). The Dutch
Constitution and the European Convention on the Protection of
Human Rights demand a precise statutory basis for violating basic
rights such as privacy and confidentiality of correspondence. The
Ministry clearly does not wish to wait for this and is now
attempting to use Article 125i of the Penal Code, which is not
intended for this purpose, to compel providers themselves to start
tapping suspect users. The Ministry of Justice is taking the risk
of the prosecution of X, in the context of which the instruction
was issued to XS4ALL, running aground on account of using illegal
detection methods. Here, again, XS4ALL does not wish to be liable
in any respect in this matter.
For information please contact:
XS4ALL
Maurice Wessling
email: maurice@xs4all.nl
http://www.xs4all.nl/
Ferry di SN
Key fingerprint = A5 F9 A5 D3 35 70 BF 25 25 90 C1 18 ED B8 AC 64
,::. post_aXion
n-:;:;.' MUTANTE
/_\ `;:.'
|~~~| ``' http://www.ecn.org/crypto/law/3_0.htm
|~~~|
|___|