[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@private> To: jvanerve@private 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) http://www.xs4all.nl/nieuws/pdf/XS4ALLdagvaarding.pdf The subpoena will be available here in English mid-March 2005. --------------------------------------------------------------------------------------------- _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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