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• Newsletters Privacy
• • •   Hidden cameras in the workplace
  • •   Tax Authorities violate tenant privacy
  • •   Personal Data Protection Act amended
  • •   ECHR rules against the Netherlands
  • •   Amendments to the Exemption Decree Personal Data Protection Act
  • •   Hacking by the police
  • •   Processing is allowed, notification is mandatory
  • •   In the cloud
  • •   International transfer of personal data
  • •   Is monitoring employee behaviour an infringement of privacy?
  • •   Tax and Customs Administration lax in checking requests for tax data
  • •   Failing to provide information when fines have been imposed will be an offence
  • •   Legislative proposal for amendments to personal data protection
• Update on 2012 Dutch Corporate Tax Proposals
• The Amended 30% Ruling Regime

Hacking by the police

Questions have been raised in parliament recently about the use of German ‘Bundestrojaner’ (Federal Trojan) spyware by the Dutch police, after revelations by a spokesman of the German software developer DigiTask that spyware and trojans have been sold to the Netherlands. In April this year there was a criminal case in The Hague in which the police had ‘hacked into’ the e-mail account of someone involved in a major drugs investigation because there was no time to wait for the mutual legal assistance from the United States before acquiring the e-mails. Hacking by the police is now a hot topic.

The court in the above drugs case ruled that an investigating officer does not have authority without permission from the user to log into an e-mail account with the purpose of accessing e-mails. Because the account concerned was on Microsoft’s Hotmail system, the police should have awaited mutual legal assistance from the United States (where Microsoft is based), which it had applied for, before accessing the e-mails. The extraterritorial application by the police of e-mail account ‘hacking’ as an investigative technique was judged unlawful by the court, which meant the suspect received a much reduced sentence. However, the Appeal Court ruled that since the hacked Hotmail account did not belong to the suspect, there could have been no infringement of any of the suspect’s legally protected interests. The reduction of the sentence was overturned. Evidently the police are able with impunity to hack into a computer system that does not belong to a suspect in a criminal case.

Legal basis for hacking?

That the police indulge in hacking is an established fact. The question is how far this hacking goes (‘exploring’ a computer, remotely copying data, capturing keystrokes (including passwords), real-time monitoring of network traffic and/or controlling a computer system, such turning on webcams or microphones) and what legal basis this might have. The Code of Criminal Procedure would appear to offer no basis, although opinions differ on this point. It will become clear in the next few years whether the investigative services make large-scale use of hacking, and if so, how courts will respond. Perhaps there will be an amendment to the Code of Criminal Procedure to provide for this investigative technique. The European Court of Human Rights has yet to give a judgment on the infringement caused by hacking (e.g. as a violation of privacy), but is likely to do so as soon as a relevant case is presented to it.

Mieke Eversteijn
Criminal law attorney
mieke.eversteijn@vmwtaxand.nl

There is additional information on privacy and how our various practice groups can be of assistance to you here.