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Ravage Webzine, 23 July 2014: 'Court blunders on AIVD/NSA cooperation'

The judge ruled on Wednesday that the exchange of telecommunications between the AIVD/MIVD and the US NSA is permissible. The plaintiffs will appeal.

Dutch intelligence agencies are allowed to continue exchanging telecommunications with their US counterparts at the NSA. This puts the AIVD/MIVD in possession of information they should never have been allowed to intercept under Dutch law. However, it is no reason for the court in The Hague to stop the international exchange. The judges consider information sharing important for national security.

The court found that the Dutch services exchange collected telecommunications data with the NSA, among others. The data in question may include both metadata (data about the communication, such as who is calling and for how long, when and from where) and data relating to the content of the communication.

The lawsuit had been filed by a number of individuals and the Dutch Association of Criminal Lawyers, the Dutch Association of Journalists, the Internet Society Netherlands association and the Privacy First foundation. They believe that citizens' privacy is being affected too much and demand that the AIVD/MIVD stop receiving and using illegally collected foreign intelligence on Dutch citizens.

In a reaction, Privacy First let it be known that the Hague court missed the mark completely, as in its opinion that the legal foreseeability requirement (including privacy safeguards) of art. 8 ECHR would apply to a lesser extent in the international exchange of data between secret services. In the Netherlands, the legal basis for such exchange is formed by a relatively obscure legal provision, namely art. 59 Wiv.

"This article falls far short of the modern requirements of Article 8 ECHR for such a provision. In essence, the current practice of exchanges between AIVD/MIVD and foreign secret services therefore takes place in a legal vacuum, a legal black hole", said Privacy First's Vincent Böhre. In Böhre's view, the Hague court's ruling amounts to legal laundering of this practice. Privacy First expects higher courts to deem this situation in violation of Article 8 ECHR and looks forward to the appeal to the Court of Appeal in The Hague with confidence."