Volkskrant, 1 May 2015: 'No evidence without retention obligations'

“Right to privacy clashes with police investigation into liquidations and other serious crimes

The abolition of phone and internet data retention obligations is 'seriously hampering' the investigation into the series of liquidations in and around Amsterdam. If the ruling on the retention obligation is upheld, 'we accept that a subsequent liquidation case cannot be solved'.

So say Jeroen van Berkel, the public prosecutor who coordinates all liquidation cases in and around Amsterdam, and head of Opsporing Hanneke Ekelmans of the Amsterdam criminal investigation department in an interview with de Volkskrant.

The verdict in the case of Benaouf A., the first convicted in the series of liquidation cases, is largely based on mast and telecom data, data from cameras determining car locations and internet traffic on the rental of (escape) cars. 'Without such data, it becomes very difficult, if not impossible, to map the network of these suspects,' Van Berkel said. 'In liquidation cases, we are confronted with silent suspects who do everything they can to stay out of sight of the police. Then communication data are crucial for detection.'

On 11 March, the interlocutory court in The Hague set aside the Telecommunications Data Retention Act. This law required providers of telephone and internet services to store all traffic and location data of users. According to the judge, this invasion of privacy was "not limited to what is strictly necessary".

The case had been brought by several organisations, including Privacy First, the Dutch Association of Criminal Defence Lawyers and journalists' union NVJ. They compared the Dutch retention obligation to the society of 'Big Brother is watching you' from George Orwell's book 1984, in which every inhabitant is traceable. 'Every telecommunications data of every citizen was stored, regardless of whether you were suspected of a criminal offence,' said Privacy First's Vincent Böhre. 'In the process, every Dutch citizen became a potential suspect.'

In the ruling, the court underlines that the disapplication of this law 'may have far-reaching consequences' for the investigation and prosecution of crimes. (...)

The Ministry of Security and Justice is working on a new proposal to still introduce such a retention obligation. This proposes that a magistrate judge must now approve the requisitioning of communication data from phone and internet providers. But its ratification could take a long time, argues criminal investigation officer Van Berkel. 'Until then, we are seriously hampered in our investigation.'

The Public Prosecution Service (OM) has compiled a list of 130 criminal cases where communication data was crucial to a conviction. These include serious offences such as murder, rape, human trafficking and extortion. Communications data can only be requested from telephone and internet providers in cases of suspicion so serious as to warrant pre-trial detention. (...)

Moreover, communication data can also constitute exculpatory evidence, says a prosecutor spokesman. (...)"

Source: Volkskrant 1 May 2015, front page. Also published on http://www.volkskrant.nl/binnenland/liquidaties-door-afschaffing-bewaarplicht-onoplosbaar~a3992229/, 1 May 2015.