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Dutch ISPs could face wiretap law

A law requiring that Dutch ISPs make it easy for police to "tap" consumers' online discourse is making its way through the country's parliament.

A law requiring that Internet service providers in the Netherlands make it easy for police to "tap" consumers' online discourse is making its way through the country's parliament--a move privacy advocates say could trigger a global domino effect.

Earlier this month, the upper house of the Dutch Parliament passed an amended law to forbid telecommunications companies from selling services unless their networks can support government surveillance during a criminal investigation.

"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," states Article 13 of the act.

"By or pursuant to a governmental decree, rules may be laid down with respect to the technical ability to wiretap public telecommunications networks and public telecommunications services," it continues.

If adopted by the lower house, the law could have sweeping implications for Net users in the Netherlands and elsewhere.

The Dutch proposal mirrors a law adopted in the United States that is mired in controversy. Enacted by Congress in 1994, the Communications Assistance for Law Enforcement Act (CALEA) allocated millions of dollars to help phone companies upgrade their networks and develop new technical standards to accommodate court-ordered wiretapping.

But major phone companies in the United States and in countries such as the Netherlands also offer Internet access or sell network backbone service to smaller providers.

Civil liberties groups charge that this convergence of voice and data networks could give law enforcement officials unauthorized access to numerous private conversations because information on these networks is transmitted in "packets." This factor can make it almost impossible for law enforcement to tap into just one Net user's activity without seeing data shipped by other people, privacy advocates argue.

The CALEA technical standards are not yet final due to the deadlock between the FBI, telcos, and consumer groups. Parties on all sides have recently petitioned the Federal Communications Commission to step in and settle the matter.

"The assistance capability requirements that law enforcement is seeking do not expand law enforcement's electronic surveillance authorities granted by Congress. It only preserves them in a new era of telecommunications," the Justice Department and FBI stated in their FCC filing. "Law enforcement officials have worked diligently with the industry to develop a CALEA standard that addresses industry concerns while preserving law enforcement's electronic surveillance capabilities."

Groups such as the Electronic Privacy Information Center (EPIC) and Center for Democracy and Technology argue that the Netherlands is being influenced by the United States, and that these days there is no real difference between voice and data networks.

"We're seeing this pressure around the world to make wiretapping easier to do," Dave Banisar, staff counsel for EPIC.

"CALEA was not supposed to deal with computer networks, but its scope is being expanded worldwide," he added. "The Netherlands could start forcing equipment manufacturers to make this a standard feature of Internet services because its country needs it. The Netherlands isn't a large country, but it is part of the European Union, and at the moment it has a fairly large impact on networking there."

The legislative move in the Netherlands was likely kicked off by a dispute authorities had with a local ISP last fall. As previously reported, XS4all (pronounced "access for all") refused to comply with a request from the Dutch Ministry of Justice's Forensic Science Laboratory to monitor one of its subscriber's Net surfing activities as well as all communication via email, newsgroups, and chat rooms.

And Britain's National Criminal Intelligence Service submitted a report last year calling for new legislation to permit police to monitor and intercept email.