The Shifting "Balance' Between Criminal Investigation and Privacy
A case study of communications interception law in the Netherlands
Bert-Jaap Koops A1
A1 Tilburg University
Abstract:
In
the past decade, numerous ICT-related investigation powers have been
introduced or extended. Have these shifted the balance between criminal
investigation and privacy? Do governments allow more privacy
infringements for the sake of law enforcement than they used to do? As
a first step towards answering these questions, this paper presents the
results of a case study of communications interception law in the
Netherlands. The study offers a historical analysis of the introduction
and changes in Dutch law regarding powers to investigate post,
telegraphy, telephony, telecommunications, oral communications and
traffic data in the period 1838- 2002. The case study shows that the
balance between criminal investigation and privacy in Dutch law has
shifted somewhat towards law enforcement, particularly in 2000, but
privacy is not altogether discarded. Still, privacy does not appear to
operate on a par with law enforcement: it seems a secondary rather than
a primary factor in legislative practice. Governments and parliaments
should pay more attention to substantiating the need for extending
investigation powers, if they want to retain a semblance of truth when
they speak of the "balance' between criminal investigation and privacy.
Keywords:
criminal investigation, privacy, communications, interception, Netherlands
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