Netherlands: legislation for forced decryption announced
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Deutsch: Niederlande: Zwang zur Entschlüsselung geplant
The Dutch Minister of Justice has sent a letter to the House of Representatives announcing a proposal for legislation that will allow the police to force a suspect to decrypt information that is under investigation in a case of terrorism or sexual abuse of children. The Minister has ignored all major conclusions and recommendations set forth in the report commissioned by his department.
The Dutch House of Representatives has urged the Minister of Justice to investigate the feasibility of such injunction. The Parliament felt these extra powers to be necessary after the media reported that the police was having difficulties accessing encrypted information on the computer of someone suspected of sexually abusing children. However, there has been no supporting evidence that this is a structural problem.
Last year, the minister agreed to investigate the feasibility of such an order. He promised to look into the reconcilability with the privilege against self-incrimination, experiences of other countries in implementing such legislation and technical developments. A comprehensive report was sent to the Parliament last week, accompanied with the announcement of a legislative proposal.
The report states that, although such an injunction will always be an
infringement on the privilege against self-incrimination, this privilege
does not preclude such an injunction as there may be a legitimate
interests at stake. The report sets out that the European Court of
Justice considers four criteria to determine whether a forced decryption
is acceptable. These criteria are:
i) the nature and extent of the coercion,
ii) the public interest,
iii) the presence of relevant safeguards, and
iv) the way in which the decrypted information is used.
The research also looks into the use of similar powers in other countries. The United Kingdom has an extensive regulation with quite some safeguards for legal protection. France has a similar law and in the United States the enforced decryption is defined by case law. However, these legal systems differ from those in the Netherlands considerably. As a result, the experiences from these countries cannot easily be translated to the Dutch legal system.
The research also examined the enforceability and developments in technology. It finds that the use of encryption is rising and that the concept of “plausible deniability” makes it hard to prove the existence of encrypted information in the first place. The researchers doubt the effectiveness of the proposed powers when used against serious criminals. Such an injunction will only work against petty criminals.
The research concludes with three proposals, apart from maintaining the status quo. One option would be to codify the procedure for such an injunction, but not to penalize refusal by the suspect. Alternatively, one could penalize the use upon the refusal. This last proposal comes in two flavours: one in which the unencrypted information is used excluded from the suspect's case and one in which the information may be used against the suspect as well.
Based on this research, the Minister has now announced a proposal for legislation that will allow the police to force a suspect to decrypt information that is under investigation in a case of terrorism or sexual abuse of children. The suspect will be penalized if he refuses to provide access to the information. The Minister does not want to let room for exclusion of evidence. The Ministry has thus ignored all major conclusions and recommendations of the report.
"Letter of Minister of Justice to the House of Representatives,
announcing legislation to allow police to force a suspect to decrypt
information (only in Dutch, 28.11.2012)
Research: forced decryption and the privilege against self-incrimination
(only in Dutch, 28.11.2012)
Bits of Freedom: forced decryption will not work and makes the
Netherlands more insecure (28.11.2012)
(Contribution by Rejo Zenger - EDRi member Bits of Freedom, Netherlands)