Dutch government can use spy data gathered illegally, court rules

Data collected by the likes of the NSA in a manner that would be forbidden in the Netherlands can still be used by the country's government, according to a recent court ruling.

The Netherlands' Supreme Court has ruled that the country's government can continue using data collected by foreign intelligence agencies, even if the information in question was gathered in violation of Dutch law.

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A coalition of organisations and citizens had brought a case against the state in an effort to force it to destroy the illegally obtained data. The coalition — which includes lawyers, journalists, and privacy groups — felt that it was unjustifiable for the Dutch government to use information received from agencies such as the US intelligence organisation, the NSA, while being aware that the information was obtained through methods deemed illegal in the Netherlands.

Although the court admitted the possibility exists that intelligence agencies gather and potentially use information that wasn't collected in line with Dutch legislation governing such practices, it has ruled that collaboration with foreign intelligence agencies is necessary to ensure the safety of the Dutch people. Moreover, the Hague court noted that data gathered by foreign intelligence agencies is subject to less strict privacy rules than the information gathered by Dutch agencies.

However, according to the court, a situation in which the intelligence agencies are no longer allowed to cooperate with foreign colleagues because "they are not familiar with their work methods and because there is a risk that the information received has been obtained using a method that is illegal in the Netherlands" is undesirable and even unthinkable. Only in individual cases can the use of illegally obtained foreign information be considered to violate privacy.

Intelligence legislation in the Netherlands and the US is different in terms of the untargeted interception of data. US intelligence agencies are allowed to intercept and query large amounts of data without a clearly defined target; in the Netherlands, such practices are not permitted.

The Dutch parliament is, however, working on proposal for changes to legislation that would give the government permission to conduct so-called untargeted interception. It's not yet known when the proposals will be published.

Although the coalition of organisations effectively lost the case, they did not go home empty-handed. In February of this year, the parliament — concerned it may have to disclose the information in court — admitted that data on 1.8 million phone conversations that ended up in the hands of the NSA was, in fact, not gathered by the US agency itself but by its Dutch counterparts, which had subsequently shared it. Up to that point, the government had insisted that the information had been gathered by the NSA.

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