The Shifting "Balance' Between Criminal Investigation and Privacy
A case study of communications interception law in the Netherlands

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