New law proposal makes The Netherlands privacy-unfriendly | Hacker News Reader

New law proposal makes The Netherlands privacy-unfriendly

voys.nl

110 pointsjorrizza66 comments

I know that this is a tricky question to engage with on HN, but is there a major-market country in Europe --- say, from the list of Germany, France, the UK, Italy, Spain, Netherlands, Switzerland, Poland, Norway, Sweden, Belgium, Austria, Denmark, and Finland --- that is fundamentally more privacy-friendly than the US, in black-letter terms?

US privacy laws have loopholes you can drive a truck through. But the limited research I've done suggest to me that that's true of virtually all western democracies, and that the loopholes in other countries can be even larger and less transparent. My impression of France for instance, is that there isn't a major distinction between what the French government can do on its own soil to combat terrorism versus what it can do abroad; that's probably not true of the US.

I'm interested in facts and non-emotional analysis; the "interesting" discussion we can have about this topic. Obviously a lot of people bring priors to it about the evils of the NSA or NSA/USG's corrupting influence on other countries. I'm prepared to stipulate that (believe it or not, I'm not that far from most HN readers on these topics, ideologically!) if we can boil things down to the raw facts.

It's hard to say because few people are well-versed in US law and the law of their country (actually, many Germans seem toknow more about US law than German law because of TV), not to mention several European countries.

One thing pointing to the importance of privacy in mainstream German law is that our Constitution Court literally invented a basic right to the integrity of information-technological system. Actually invented it.

I know! I've found it very difficult to "research" this online.

I'm kind of hoping that enough people know the principles behind the laws of their own countries that we could productively compare notes.

What are the parameters of the "integrity" right for IT systems in Germany? What kinds of stories could I look for to see what it's limits are? Rights always conflict with each other; there's always a "but".

Very important decisions of our Constitution Court are actually officially translated into English. The translation is only informative, of course.

http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidu...

Nope. They're all as bad as eachother, except the UK which is by far the worst of all of them (USA included).

In the USA at least though, there is the illusion of having some form of debate over privacy and surveillance (USA Freedom Act).

In the UK and EU they aren't even pretending to have this debate. They're just steaming right on ahead with draconian and regressive policies.

I have a really hard time believing that the US is categorically better than Europe on this. Could you maybe be a bit more specific?

I think I share the opinion about the UK being worse than the US on this spectrum, and could probably flesh it out if someone very familiar with UK law was here to fact-check me.

I was referring more to the USA Freedom Act, which in fairness does very little to reform mass surveillance (and in many cases makes it a lot worse) but the fact that this 'reform' was tabled at all is something that hasn't occurred at all in the UK and EU.

The public has largely been ignored and the government of the UK actually quietly rewrote laws relating to surveillance in order to grant immunity from prosecution to GCHQ.

They even allowed Privacy International to continue with their law suit for a whole year knowing that it wouldn't go anywhere because of the changes they had made to the law without notifying anybody.

I was born in Switzerland and as a child was interested in Morse telegraphy. The military paid an amateur radio course for everyone doing this. When I was 20 they realized this and put me in the electronic warfare department. Every year everyone from military has to do some repetition courses. I my department everyone was actually working on real world data during this weeks. They did regular background checks if anyone of this group had any police records. To get this records, I always had to sign a paper (I just write this to show that not even the military could just access personal information).

Every year and especially during my initial training we had to do several tests. One of the main questions which was repeated thousands times and hammered into our brains, was: on who can we spy. It was not allowed to fail in this basic tests or you had to repeat them ad nausea.

The main rule was: Never ever spy, on any circumstances, on Swiss citizens. You want to spy on foreign things? Go ahead. But never ever on our own citizens.

I actually cannot say how reality looks, just what every soldier within the electronic warfare department had to go through.

Sure, but the, the US says exactly the same thing.

The immediate questions then are:

* What exactly is "spying"? The Swiss government appears to use signals intelligence in drug interdiction and child pornography.

* How ambitious is Swiss counterterrorism? Is it a local criminal enforcement project, or a foreign policy thing?

* Is there a distinction drawn between targets of surveillance, which are usually foreign, and collateral damage to people communicating with them?

* Does that policy apply to Swiss citizens, or to anyone on Swiss soil?

Iceland? They kicked the banks out and the pro-USA goverment and their three letter ties.

I believe that on paper, the United States is the freest and most privacy friendly place on the planet (well the paper that isn't classified). In practice not so much. Things wealthy people care about are very high privacy (financial transactions, private offshore holdings, medical records, etc) things not so wealthy people care about are basically wide open (criminal records, books you rent in a library, phone calls). We stomp all over the constitution.

Take the gay marriage debate, not once did I see someone question if the government even has a right to determine who is allowed to be married, and why is should be involved at all. "Congress shall make no law respecting an establishment of religion" marriage is a religious institution, seems pretty clear.

All we really have to do is fire judges (and those that appoint them) who do not uphold the constitution. This has to be for all violations, not just the ones you disagree with. Don't like guns? Pass an amendment. Don't think that 'Hate Speech' should be legal? Pass an amendment. Scared of terrorists? Pass an amendment. Until then the lawmakers and judiciary will just run roughshod over our "certain unalienable rights".

>marriage is a religious institution, seems pretty clear.

No one is debating marriage the religious institution, you can go have whatever private marriages you want, and religions can still discriminate. What was being debated was the somewhat different, marriage the legal entity that effects inheritance, joint custody and all the other legal benefits that spouses get. They commonly occur together but they do't have to.

Clearly, but why do married people get any benefit that people who are not don't have? Isn't that in and of itself discriminatory? Isn't the government defacto promoting region in general by giving tax breaks to people who choose to contract with each other in such a manner?

Marriage as a legal entity is a legal recognition of a social custom. While some prefer to establish that social custom with a religious ceremony, there is nothing inherently religious about it. For example Buddhism has no religious institution of marriage, yet countries that are primarily Buddhist still have marriage as a civil entity.

I'm married. I don't have/follow any religion.

As the sibling stated, this is mostly for law (and therefor state?) related purposes. Taxes. Shared custody. Being able to inquire about my wife's medical situation, should she end up in hospital. Inheritance. Shared property ownership.

Religion is an entirely unrelated, orthogonal (and private, i.e. I agree that the state should have no say here) concept.

Financial transactions are not necessarily "very high privacy" in the U.S. Financial transactions over $10,000 are required to be reported to the government, as well as transactions that a banker believes are part of a cumulative transaction over $10,000.

https://en.wikipedia.org/wiki/Bank_Secrecy_Act

In addition, banks are not allowed to open accounts without verifying the customer's identity.

https://en.wikipedia.org/wiki/Know_your_customer

I don't think it's clear how well credit card transaction data is protected against subpoenas, and there is a rumor that one or more of the many undisclosed §215 bulk collection programs relate to financial transactions. There are statutory protections for financial transaction records, but the Supreme Court has held that a bank account holder has no constitutional expectation of privacy in the bank's records. U.S. v. Miller, 425 U.S. 435 (1976).

To the government is one thing, you have to report all income to the government over a certain threshold. If you are a corporation trying to buy votes, then your finical dealings are highly private.*

*Citizens United v. FEC

marriage is a religious institution, seems pretty clear.

That's the issue, there is no single definition. Firstly, the practical issues of every religion having different views on marriage that may be incompatible with municipal law. Further, in many countries the religious institution of marriage is purely symbolic and not legally binding. There is a wholly separate category of civil marriage, which is often intertwined with things like contract law and tax law, meaning that the denial of it to certain groups can be construed as discriminatory. Once the state is involved, many bets are off. Furthermore, some jurisdictions have so called "common law marriage" clauses that allow for circumstances indirect to religious or civil marriage, such as a domestic partnership, to be considered legally binding marriages.

I generally support having marriage be privatized and simply be a contract set by N parties that is arbitrated by courts, but your presentation omits crucial details. Moreover, whether the ideal marriage privatization is even feasible under the current disparate laws remains an open question.

> All we really have to do is fire judges (and those that appoint them) who do not uphold the constitution

The biggest problem with doing something like this is coming to an agreement on exactly what the constitution allows and prohibits (and somehow also get everyone to agree that the constitution should be followed, because there are people all over the political spectrum who don't think that).

I think looking at your gay marriage example exemplifies why your thinking is wrong.

Your interpretation reads the phrase "establishment of" completely out of the text. A perfectly reasonable interpretation of that text is that Congress isn't allowed to establish a national religion. And using your logic, we should fire all the judges who have interpreted the establishment clause to prohibit more than that.

Similarly, there is a perfectly reasonable interpretation of the 4th amendment that looks at the things protected in the enumerated list (person, house, papers, and effects) and concludes that it only prevents what would be a trespass to property if not done by the government. Judges who read in a "right to privacy" from that, according to your view, should be fired.

In fact, the whole "right to privacy" hiding in the "penumbras" of the Constitution can be discarded, and the judges who read that in should be fired too.

Alternatively, I think your problem is not with judges who don't uphold the Constitution, but rather your interpretation of it.

The Supreme Court found this in Everson Vs. Board Of Education: “The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another."

'aid all religions' is the key point and is consistent with my reading. By applying that same logic you are forced to come to the conclusion that by having a government sanctioned marriage, and by giving tax benefits among others with said marriage. You are aiding a religion and thus it is unconstitutional.

The only thing that the text of the Constitution compels is the first sentence: "neither a state nor the federal government may set up a church." That's a narrow, literal reading of the text, but it's a totally reasonable one.

So, to apply your reasoning, why shouldn't we fire the justices who decided Everson v. Board for contravening the Constitution by adding a bunch of things to the establishment clause that aren't in the text?

Government sanctioned marriage, per se, is completely neutral to religion or its absence, out neither files rules that are particular to religion, not only annoys the religious. So, no, it doesn't violate the rule laid down in Everson.

> marriage is a religious institution, seems pretty clear.

Marriage has been a civic institution arranging property and legal rights as long as it has been a religious institution.

The separate civic and religious functions were often intertwined in societies which did not separate Church and State, but there are clear and separate served by the now-separate civic and religious institutions sharing the same name.

I'd like to see a source for that. Early government was religious in nature (Many kings were considered gods). What is your solution? Change the name? I can agree with that as long as 'married' people don't get any benefits that unmarried people do not.

Unfortunately, passing an amendment is nearly impossible in the United States, leading to a much more hateful and uncompromising struggle to get everything you care about before the Supreme Court.

Scalia has this nice little statistic showing that just about 2% of the American population can kill any constitutional amendment.

Not any 2%, of course, just the 2% in the least populous states.

I have a feeling the country was at least 2% racists in a few low population states in 1964 when the twenty fourth amendment was passed to get rid of the poll tax. If you think the current system is bad, pass an amendment and fix it.

>not once did I see someone question if the government even has a right to determine who is allowed to be married, and why is should be involved at all.

This has literally been the Libertarian Party's position since the early 70s: it's none of government's business deciding whom one is or isn't allowed to marry.

I'm a European and I honestly have no idea how to answer to the point, but even if the law allows surveillance, there's also the question of resources; even if the laws in my country (Romania) would be worse than those in the US, our intelligence agencies are far, far less capable than the NSA and out-sourcing this is a whole different can of worms and can't ever be justified to the public, even if they are in fact doing it.

I must say that I don't believe in laws that protect my privacy. However, I do believe in using technologies for protecting my privacy. For example what I do like about the US is that you've got your Fifth Amendment which apparently applies to encryption keys. And such a protection against "Self-Incrimination" is actually the exception rather than the rule.

Competence is certainly an important factor. Smaller economies are less able to spy competently. However, incompetent spycraft can become much more invasive, since you know it is happening and it affects you more noticeably.

There are several forms of privacy here and it's important to make the distinction before arguing about what country has the better laws.

One form of privacy is about what information the government is allowed to gather about its citizens and what citizens can do about it. Before Snowden many would have argued that this is the US's strong point because of things like the 4th Amendment. Post-Snowden it is pretty evident that these rights have been hollowed out to the point where they have become meaningless.

The next form of privacy is about what information companies can collect and what you can do about that. In the US this is practically non-existent. It's the anti-thesis to the business models of lots of big companies like Facebook and Google. In Germany by comparison a company is legally required to inform you (in print, if requested) what information about you it has on records, who it has passed this information on to and to delete all of that information permanently at the end of a business relationship (e.g. if you want to delete your account). What's more, you have to give explicit consent to how your data is processed and used (this is why the TOS opt-in is legally necessary -- oh, and a TOS can not contain any unreasonable or unexpected clauses either).

The third form is about protecting your privacy against society. This tends to vary even within the same jurisdiction depending on who you are -- the protections may be different for persons of interest (including celebrities and politicians) or even depend on the situation (e.g. the privacy of a police officer may only be protected when they are off duty).

I'm German, so I'm obviously biased, but I can try to offer a nuanced explanation why I think German privacy laws are stronger than American privacy laws.

As I already said, companies require your ongoing consent to handle your personally identifiable information. In many cases, companies also have to be a privacy officer whose role is to oversee how that information is processed and to protect the privacy of customers or users. Of course there is a conflict of interest but misbehaviour can mean they are breaking the law (much like an accountant breaking the law because a higher-up tells them to).

In reverse, every commercial actor on the Internet (where criteria for commercial actions can be as simple as "receiving any money whatsoever" even if it's banner ads that barely cover your expenses) is legally required to provide contact information including a summonable postal address. This can be considered a limitation of privacy but also ensures users/customers can actually make use of their rights afforded by consumer protection laws. In other words: German law distinguishes between a right to privacy and a right to anonymity (the latter of which is not legally guaranteed by German law).

In terms of privacy from the government, Germany sadly shares the troubling problems of the US. Furthermore, thanks to post-war agreements (and follow-ups to those original agreements), several countries including the US basically have a carte blanche, especially when it comes to spying on German citizens. There is a cognitive dissonance between what Germans tend to think the government is allowed to do and what it actually does (and legally so, it seems) but both the Verfassungsschutz (the domestic security agency) and the BND (the foreign intelligence agency) have come under public scrutiny for worrying behaviour and potential corruption -- in the case of the Verfassungsschutz there is a strong indication that the agency focusses on left-wing extremists while blatantly ignoring the far more active right-wing extremists, either because of we actually had a left-wing terrorist organization in the past (the Baader-Meinhof group) or because it has an unfair systemic right-wing bias itself.

Finally, a lot of the paparazzi style "journalism" is illegal in Germany although there is a lot of leeway for celebrities and politicians ("Personen der Zeitgeschichte"). We don't have perp walks (though there have been episodes of an attempted "Americanization" of celebrity trials in Germany -- luckily heavily criticized in the parts of the media that didn't engage in it). If a friend shares a picture of you on Facebook they are legally required to take it down (as is Facebook) if you don't want it to be public and you can even sue for damages where appropriate (though good luck with that as the money you can get out of suing for damages in Germany is pennies on the dollar compared to the US).

I should also mention that every German adult has to have an ID card (with a biometric photo) and inform their local civic center whenever their address changes (to ensure there is always an official record of a summonable address). Contrary to popular belief you're not legally required to carry the ID card (unless you're driving a motor vehicle, in which case you also need to carry your driver's license and papers for the vehicle and have a valid license plate). In turn you don't have to register to vote (you will automatically be sent the documents you need to bring in when casting your vote as well as a form to sign up for a postal vote if you can't be at the voting center on that day).

Oh, and before I forget: unlike the special protection medical and legal confidentiality get, the banking confidentiality is not impenetrable in Germany. I don't think clerical confidentiality is either, but Germany's church-state separation leaves a lot to be desired (the ruling political party actually has "Christian" in the name and Merkel repeatedly said that Europe is founded on Christian values, the government collects church tax as an actual tax and pays up to 100% of the operating costs of "church-owned" hospitals, schools and so on -- I could go on for hours but the situation is pretty dire even if there isn't much public awareness of it).

There never was a "bank secrecy", but almost everyone believes there was and it was abolished in some attack on our rights. It's possibly one one the widest-spread legal myths.

An acquaintance of mine is a state prosecutor, and he's always amused about this. IIRC it goes so far that when he requests information from a bank employee, he usually directly tells him to ask his in-house legal counsel if he's allowed to withhold information.

What really existed and was softened quite a bit was "tax secrecy". The tax agency was not allowed to freely peek into your accounts. But criminal investigators always could.

About the CDU: having a party for Christians is in no way against the seperation of church and state. Actually it's the other way around: if Christians were not allowed to form parties (or name them as such), it would amount to state-sponsored discrimination against Christians and endorsement of everyone else.

The government collects the "church tax", but neither creates it, nor keeps it. The churches themselves decide if and how much to "tax", and they pay the state for the collection service.

The rest of your anti-Christian rant is also pretty much baseless, but not easily refuted with a single sentence.

Edit: I don't want to seem to pick on you too much; I liked the rest of your comment and upvoted it (which doesn't matter since I replied afterwards).

For the record, I'm not anti-Christian, I'm anti-religion.

I agree that the CDU itself is not in direct violation of the separation of church and state but Germany decidedly does not have a separation between church and state -- unlike the US. The absurdity of course being that Germany is religiously fairly moderate in comparison.

I'll also freely point out that most of the benefits religions (or Christianity in particular) receive in Germany[0] are not actually being justified with religious arguments but arguments from tradition or the will of the majority and so on.

My biggest gripe with the two big Christian churches in particular (the Catholic church of Germany and the federation of various Lutheran and other evangelical churches) is with the church-operated hospitals, kindergartens, schools and so on.

First of all, because these are operated by the church, the regular labour laws do not fully apply. Instead the church is allowed to apply ecclesiastical law. Aside from voiding various labour protection rights this also allows them to openly discriminate in accordance with religious laws -- e.g. against non-believers or (in the case of the Catholic church) gay or divorced couples.

Additionally, despite being granted this special status, in many cases the majority of the financial burden is actually carried by the state[1], in some cases covering up to 100%[2]. For all intents and purposes, these are public, state-funded institutions that are operated under church law for no discernible reason other than history. And while we're talking about accidents of history, Germany is also directly paying the church on top of all that[3][4].

As for the church tax: I'm sure that the position of the Christian churches is not unique -- if the Jewish council or a hypothetical unified Muslim church[5] was to levy such a tax I'm sure that would be collected just as well. But it's inconsistent to argue that it's fine for the government to collect church tax alongside actual taxes for the churches but not other mandatory fees (like the Rundfunkbeitrag -- the now universally mandatory fee that supports the public broadcasting channels). I'm aware of the argument about separating the state and the public media (because we're paranoid about state-controlled media for obvious reasons) of course, but the core point is that the tax agency is not a state-sanctioned collection agency for membership fees.

Oh, and of course there's little things like the fact that religious freedom of the parents trumps infant boys' right to bodily integrity[6]. But to be fair, that court decision was mostly based on not upsetting the Jewish community and we have good reason not to want to upset the Jewish community considering what we did to them less than a hundred years ago.

[0]: http://www.3sat.de/page/?source=/ard/sendung/176358/index.ht...

[1]: http://www1.wdr.de/fernsehen/aks/themen/kirchlichetraegersch...

[2]: http://www.heise.de/tp/artikel/38/38390/1.html

[3]: http://www.taz.de/!5064407/

[4]: http://blog.handelsblatt.com/handelsblog/2013/10/11/warum-za...

[5]: The problem Muslims face with regard to being recognized at the same level as Christians and Jews is that Islam is not as well-structured in Germany at this point. Because Islam is still largely an immigrant religion (i.e. its members being an incredibly heterogeneous group coming from many different places), there isn't one Islam but several versions of it, much like the many different evangelical churches. Unlike the different evangelical churches they're not likely to unify any time soon. It took the evangelical churches until the early 20th century to unify in Germany.

[6]: http://www.tagesspiegel.de/politik/ein-jahr-beschneidungsges...

Finland, at least for now, doesn't allow mass collecting of data. There is no foreign intelligence either (except of course military sigint along the border). Finland isn't part of any military alliances, so there is no sharing of intelligence with allies.

These might of course change in the future. Since the Snowden leaks, there has been lobbying to give the military and Supo ("protection police", roughly the Finnish NSA, but police rather than civilian) the right to spy abroad and mass collect data. The Ministry of Transport and Communications is opposing the mass collecting part, but everyone else seems to be supporting it.

Some of the media and politicians are constantly trying to convince people that we have to join NATO ("The European Defensive Alliance" as they like to brand it), but I doubt that is going to happen any time soon.

Of course most data traveling to/from Finland passes through Sweden, which shamelessly spies on it.

I don't think this is the right way to frame the discussion. It's not US versus EU or EU countries against each other.

It's simply people versus their various over-reaching governments.

No country is substantially better than any other, a couple of exceptions exist but those are very small countries that have little or no impact on the world as it is today.

So there's work to do. Everywhere.

The interesting discussion that we could have is what we're going to do about it, not which country currently is marginally better on some front because it will most likely be marginally worse on some other.

There isn't a major country in the western world that isn't guilty of wholesale privacy violations and it isn't a situation that is improving either.

Technology won't fix this.

Poland and Finland are a little bit better than the rest, but only a little bit and they're wide open to their bigger and nastier neighbors.

I think you misunderstand me. I'm not trying to establish a ranking, so much as I'm interested in comparing notes, if only to see which policy approaches work and which don't.

Poland does relatively well because the Poles have a very good memory for the times when the communists still ruled and have managed to hold back quite a bit of legislation that would have made privacy intrusions a lot easier.

Something similar was thought to be the case in Germany but it turned out to be mostly a load of nonsense.

NL has a good name but in fact is one of the worst offenders.

Finland is trying really hard but has Russia and Sweden as neighbours and those are running roughshod over the rights of the Finnish citizens.

And so on... it's a sad state of affairs. The biggest sign your country has good privacy is because you're economically not a player, so being 'too small to matter' is one way in which you can differentiate to the point where you can give your citizens some privacy.

But as soon as you're an economically significant entity the fear factor starts to outweigh common sense and privacy goes right out the window, though there will definitely be an attempt to put some lipstick on the pig and make it look like we're all so much safer.

> Technology won't fix this.

Yup. This is entirely a political problem. If somebody invented a fundamentally-decentralized, fully-encrypted, totally-anonymous network, it would just be banned outright and we'd be exactly as screwed as before.

> It's simply people versus their various over-reaching governments.

If pretty much every liberal democracy of any significant size is doing it, maybe we should stop and think about why. Blaming "over-reaching governments" is too simplistic in my opinion. I have a hard time believing that the legislative process is so broken in every liberal democracy that such surveillance is happening contrary to the public will.

> maybe we should stop and think about why

They tell us why!

- to keep us safe

- to protect our way of life

- to protect the children

- insert your own favorite fear mongering here

And all that without a shred of proof.

'if everybody is doing it' wasn't a very good reason to jump on the bandwagon in high-school, I see absolutely no reason to come to the conclusion that 'if every liberal democracy of any significant size is doing it' is any stronger as a reason to give out free passes.

This is all about fear and using that fear to push through legislation that appears to benefit nobody (except maybe some technology vendors) and that has the potential to negatively affect the lives of 100's of millions.

Given the stakes I think it is the other side that should do the explaining without us having to 'think about why' because if we're just going to sit and make stuff up there is no end to this, ever.

Giving up all these privileges should come with a substantial change in quality of life or some other tangible benefit and from where I'm sitting I have not seen anything at all that was not better on those fronts when I was a kid.

Instead of some strawmen, you could pull real reasons:

- industrial espionage

- government espionage

- wiretaps and other active investigations

- supporting military ops (like "counter-terrorism" stuff)

Throwing out those strawmen won't convince anyone of anything. The discussion of whether it's worth it is important enough to introduce nuance to what you're saying (are you against the NSA tapping, say, Kim Jong-Un's phone?)

Those strawman aren't mine, they are the reasons stated by the people that push these things on us.

A statement that "public will" had anything to do with any of this would be an extraordinary claim. The public can't decide not to have traffic jams. How would they decide what information gets collected by whom? I doubt they could decide what information gets collected by devices they own.

> in every liberal democracy

Could this be the reason? Maybe it's an arms race and each government is afraid of being spied by the others so they invest in surveillance too.

> I'm interested in facts and non-emotional analysis;

Pff. You're intention and the point you want to prove is ridiculously transparent. Don't try to pass it off as neutral and factual curiosity.

It's not out yet, but you might want to check out "Privacy on the Ground: Driving Corporate Behavior in the United States and Europe", by Bamberger and Mulligan.

I'm by no means an expert, but I'd say Belgium currently handles privacy in a reasonable manner that's definitely more privacy-friendly than the US.

Like many countries we have a commission for the protection of privacy to ensure personal data is handled with care. One of its responsibilities is to uphold the proportionality principle. The law mandates that personal data should only be collected in so far it is reasonable to do so and the collection needs to be intended for a specific purpose. The commission usually offers guidance and recommendations in such matters, but they do more than that. A few weeks ago they took Facebook to court because of, in their words, a flagrant breach of privacy legislation. Tracking people without an account and without providing them a way to opt-out was deemed unacceptable.

Companies are not the only possible invasion of privacy. The intelligence services are another example. They are monitored by a permanent and independent committee: Standing Committee I. The members are appointed by the Senate and have security clearance. This only started in the early nineties and precisely because there were problems. Now, if there's a complaint from a citizen who feels like he or she has been treated unfairly (I'm guessing this excludes foreigners, not sure), the committee will investigate. Their annual report looks quite interesting, and is way more specific than I expected, but unlike the site it's only available in French or Dutch.

A citizen can request the files any part of government has on him or her, this includes the intelligence services and state security. Access can be denied in some cases, but the refusal has to be accompanied by a proper explanation.

What if the privacy laws aren't respected by the government or the police? Entire court cases have been scrapped because the initial phone tap was deemed illegal, thus tainting all subsequently obtained evidence. There needs to be a properly motivated reason to start tapping phones and it's only allowed for specific types of crime. Drug dealers and arms merchants have been set free because of (clerical) errors regarding search warrants. The law and the various procedures will probably evolve to fix such issues. I haven't quite figured out if this does anything to disrupt parallel construction, but that's another matter.

Upholding existing laws is only part of the puzzle. Any government can try to pass overbearing and privacy-invading legislation. That doesn't have to be malicious in intent. Not everyone agrees on what is an acceptable intrusion on privacy and what is not. Belgium is no exception. A decent example is the recent data retention law, inspired by the EU directive. Law enforcement supported the retention, others did not. A human rights organization (Liga voor Mensenrechten) went to court and the Constitutional Court of Belgium struck down the law.

On a different note, large-scale surveillance by the Belgian government seems unlikely. Maybe the government would try if they could, I don't know. It probably helps that Belgium is tiny and many of its government agencies, intelligence services included, are not particularly well-funded. Then there's the complicated government structure and the wide variety of political parties that have to form coalition governments. Keeping secrets is hard in such an environment. Wild speculation: maybe this is why Belgacom (now Proximus) was hacked instead of formally requesting an exchange of intelligence information?

I think (hope?) a more balanced approach like in Belgium can work in bigger countries, further bolstering cooperation between allies. Sensitive personal information can be shared more freely between nations if they offer the same level of privacy protection.

It's odd to see the Netherlands referred to as previously being privacy conscious.

Back in the mid 2000's I recall looking in the CIA Factbook and noting that the Netherlands intercepted more telephone calls and did more internet monitoring than just about any other country, per capita (of course "Fact" was used rather loosely in the title of that book).

Hackers in the Netherlands were introducing regular pulses into their daily internet activity and then using Fourier analysis to detect this signal in the server load of apparently well known Government buildings, believed to belong to the Dutch secret service (to what extent these rumours were true, I can't say -- I wasn't involved).

For historical reasons, the Dutch people also developed a habit of "spying" on neighbours to "make sure they were ok". This is still included in some guides for foreigners living in the Netherlands, so they don't become concerned when their neighbours begin looking in their windows.

In my stay in the Nethelands, I however learned that just about every spy agency in Europe was spying on just about everyone else in Europe. So it became clear in the end that the Dutch weren't necessarily any worse at it than everyone else. Of course, that threat seems to be greater in larger states with bigger economies. If you live anywhere else, you at least know everyone else is probably spying on you, even if your own Government is not.

I wrote about this at length:

http://jacquesmattheij.com/wholesale-privacy-violations-in-t...

We're definitely not doing well at all on this front and it is getting worse rather than better.

In my opinion, all that is happening with these "anti-privacy laws" is that very old spying practices are becoming codified in law. Nothing will actually change. The spying is already happening, and has been for a long time.

Yes, the crimes are simply being retro-actively whitewashed and for the future you can expect a lot more of the same especially because it is now legal.

Never mind that these laws are in conflict with just about every right that we as citizens are supposed to have and which we all learn in school should be important to us.

So does Dutch law actually recognize the UN's International Covenant[1] ? While a country can be a signatory to the covenant, it is just a popularity stunt until there are locally enacted laws which provide for enforcement of its provisions. It isn't like UN Peacekeepers are going to come parachuting in to your rescue.

Also the comment about Mass surveillance is incorrect. While it may not have found any terrorism suspects there is ample evidence that it has impacted drug smuggling (as implemented in the US) where the DEA was fed information that it had to lie about where it got it. While I find the whole parallel construction thing a huge violation of civil liberties (and generally should be illegal) it is pretty clear that mass surveillance did identify a number of drug operations. So in that regard it "works". It might be better to say that it hasn't been shown to be an effective tool against terrorism.

[1] http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

The fact that "it works" is not a good argument imo. Slavery works to get shit done.

To be clear, "it works" is not an argument, it is a counter factual, basically evidence that invalidates a previous claim. The argument that author makes was a general "it does not work" and in the very broad definition of works or doesn't work, mass surveillance can be shown to have uncovered unlawful activity that would have gone undetected without it. That is a very technical definition of 'working' and does not address the moral or legality issues of the surveillance itself.

My goal is to help the author make a stronger argument for their cause. And it is stronger to claim mass surveillance has not been effective at countering or uncovering terrorist plots but it has been effective at violating peoples civil liberties and subjecting people to a violation of their right to privacy. Then you have to tie that right to privacy to locally enacted laws or constitutional claims. In the US we've been asserting that mass surveillance is a violation of the 4th amendment which says US citizens have the right to be secure in their persons against unreasonable search. And then we've gone on to argue that mass surveillance is an unreasonable search. With judicial backing like the recent ruling about putting a camera on a telephone pole across the street from a house to keep it under surveillance.

So you have to build the argument from the initial claim to the last one so that each step of the way the listener can understand and agree (or debate) the evidence you present for supporting that claim. That was the form the article takes, laying out its claims one by one to support its call to action to reject the changes proposed in Dutch law.

Parallel construction should be unlawful. The point of the exclusionary rule for evidence is to address the incentives of law enforcement. It's not a recognition that specific pieces of evidence are somehow tainted and untrustworthy. That's a broken premise parallel construction seems to rely on.

But then a follow-on question: for the big 3 EU countries, what are the exclusionary principle rules? From a little research last year, I know that the exclusionary rule in the UK is more complicated than it is in the US.

Germany: none at all (barring extreme cases), and that's really the overwhelming mainstream opinion of German scholars. Only defenders lament it.

The idea is that much harm comes from letting people walk, just because the police did an honest mistake. Or even a willful, outrageous thing.

Punishing the police officer should be enough to deter such behavior.

I think that it's a reasonable stance, but I'm not invested into it much.

I tend to see it as another example where we try to find a reasoned and weighted position, whereas America usually takes a very black and white approach.

I don't mean that disparagingly, it's a valid position. Just an observation.

Do the police officers actually get punished in Germany?

At least every prosecutor's office has a whole department dealing only with crimes committed by officials, and I guess they're not just sitting around. :-)

I believe it's just like you would expect if you knew nothing about Germany: many crimes are punished, many aren't.

For whatever reason, and yes, cronyism and a certain reluctance to prosecute does happen. But that's a null statement.

I won't claim that reality is great, I just have no reason to believe that police officers regularly get away with major infractions.

IMO this is unquestionably a good thing about German law. There have been a few rare cases of "rogue police officers" (there was a case a few years ago where a police officer tortured a suspect because he wanted to save a child, which led to a huge debate about the morality of it all over the media) but the system seems to be good at making those the very rare exception.

Of course evidence still retains its context. An admission made under torture, for example, is likely to be considered inherently invalid because it is extremely unreliable. This is actually a bit ironic (Morissettian irony, not literal irony) if you consider that the US is engaging in systematic torture to extract bullshit intel out of terrorist suspects (whereas reliable evidence provided by a police investigation could be dismissed because of mere formalities).

It's a fair criticism. However I think it's too early to be telling startups to stay away from the Netherlands. Both because the new law may be prevented yet, and these types of laws are occurring simultaneously across most of the developed world. I'm not sure where a startup would flee to, to avoid them.

I might take the opposite tact here. I'd argue instead that startups should feel perfectly comfortable making the Netherlands their home, for all the positive reasons, and they should all focus on slaying these bad qualities. The Netherlands only has 17 million people, it's still very possible to have your voice heard. A focused group of startups can probably still make a difference.

I'm dutch and I agree that a decision not to go there shouldn't be rushed but a bill like this being even considered makes the choice very flaky.

The trouble once a country starts trying to pass laws like this they tend to carry on until they get through.

So they're doing exactly what the NSA and GCHQ are doing but they're actually being transparent about the fact that they're doing it?

That's not a fair assessment. The problem with NSA isn't that their authority is opaque. The problem is that their authority, dating back to the cold war, is so broad that it's difficult to cabin what their doing into public policy objectives.

In other words: once you pass a law that gives the government authority to dragnet communications, no matter how specific and overt the law is, the authority you've delegated does grave and intrinsic harm to transparency.

GCHQ are pretty clear what they are doing. They hover up everything they physically can regardless. If they get caught and it turns out to be illegal they get Parliament to change the law for them.

Without getting specific to particular startups - obviously the best country is the one where you have a large market -which are the best countries for startups?

In terms of availability of funding, legal ability to onboard foreign workers, IP rights, general digital-friendly legislation, and so on? I'm only really aware of the US & larger EU countries, presumably there are also great opportunities further afield?

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