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XS4ALL sues Dutch government for costs of wiretapping

[XS4ALL is a famous Internet provider in the Netherlands. --Declan]

-------- Original Message --------
Subject: XS4ALL starts case against NL government about costs  wiretapping
Date: Mon, 07 Mar 2005 12:59:19 +0100
From: Judith van Erve <jvanerve@xs4all.nl>
To: jvanerve@xs4all.nl

Amsterdam, March 7 2005.

XS4ALL starts case against NL government about costs wiretapping

Internet provider XS4ALL today launched a court case against Dutch
State, seeking compensation for the cost of making its network ready
for wiretaps. Since the end of 2001 XS4ALL has invested about half a
million euro to comply with the requirements for lawful interception,
a significant percentage of the net profit. Because of the rapidly
increasing customer-base and the even stronger increase in the volume
of Internet usage, XS4ALL will have to make many new high investments
in the near future to comply with wiretapping legislation. XS4ALL
considers it unreasonable that these costs are not reimbursed, since
these investments are made purely in the general interest of law
enforcement and do not benefit the providers in any way.

The Dutch Telecommunications law from 1998 obliges telecom operators
to make their networks and services interceptable. Since 2001
internet providers have also have to comply fully. The State only
reimburses the administrative costs of executing a specific wiretap
order, not the investments in the purchase and maintenance of the
equipment. The State justified this cost shift at the time by
referring to 'budgetary reasons'. The Dutch Council of State, a body
that advises on legislation before it is presented to Parliament, and
members of the (currently governing) Christian Democrat party were
extremely critical at the time about this cost shift, arguing that
law enforcement was by definition a government task. The fact that
the costs of wiretapping are increasing - also due to increasingly
technically complex demands from the law enforcement authorities - is
not an argument according to XS4ALL to shift the costs to the ISPs.
In his subpoena XS4ALL's attorney Remy Chavannes of the firm Brinkhof
writes: "If the costs of wiretapping do not outweigh the benefits in
the form of more effective law enforcement, that is an indication
that wiretapping powers should be used more sparingly, not an
indication that the costs should be shifted to providers."

Apart from obtaining a reimbursement of wiretapping investments, XS4ALL
hopes the case will also set a precedent regarding the division of
the costs of law enforcement demands between the government and the
industry. The European Council of Justice and Home Affairs ministers
is currently debating a far-reaching proposal to oblige telecom
providers to store all traffic data about internet and telephony
usage for a period of 1 to 3 years. The information to be collected
includes who has been calling whom, for how long and from where and
what other activities customers have engaged in on the Internet, such
as web surfing.

As with lawful interception, Justice minister Donner intends to make
industry bear all the costs for mandatory data retention. A report by
KMPG from November 2004 concludes data retention will cost Internet
providers millions of euro, dwarfing ISPs' relatively low investment
budgets. XS4ALL contends that the State itself should pay for law
enforcement tools.

According to the subpoena, the law requiring providers to pay for the
costs of wiretapping is a violation of property rights and an
obstruction to freedom of speech. XS4ALL is being forced to invest in
wiretapping equipment while being obstructed in the development of
new services that can make Internet communication more secure, such
as VPN, VoIP and IPv6. This endangers the freedom of speech of all
Internet users. Moreover, the cost division also violates the
principle of equal discharge of public burdens and European rules on
free movement of services. The European Authorisation Directive also
limits States in the obligations they may put on service providers
and does not permit States to place wiretapping costs on providers.
Providers in many other EU member states, such as Austria, Italy,
Finland, France and the UK, are fully reimbursed for wiretapping
costs. In the United States providers are also fully reimbursed for
wiretapping costs. This creates a serious competition problem for
Dutch providers.

The complete subpoena (in Dutch, 49 pages)

The subpoena will be available here in English mid-March 2005.


Posted by Declan McCullagh on Mar 07, 2005 in category privacy

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