The tension between privacy and national security in
the context of intelligence- and security services:
A qualitative analysis of the discussion preceding the adoption of the Wiv (2002) in the Netherlands
Name: Lisanne van Rutten
Programme: MSc Crisis & Security Management Institute: Leiden University
Institute of Security and Global Affairs The Hague, The Netherlands
Student number: s1534912
E-mail: l.van.rutten@umail.leidenuniv.nl
First supervisor: Dr. G.M. van Buuren Second supervisor: Prof.dr. P.H.A.M. Abels
I Abstract
The primary purpose of this study is to examine whether two contradicting perspectives were used in the governments’ argumentation preceding the adoption of the new Act on Intelligence- and Security Services (Wiv) in the Netherlands. If national security interests and civil liberties are considered, the predominated academic notion is that both need to be balanced by trade-offs. However, a less dominant academic idea states that it is possible to mutually reinforce both interests. Thus, two perspectives considering the tension between civil liberties and national security could be distinguished in academic discussions. The research question aimed to answer is: To what extent are the two perspectives in terms of trade-off or mutual reinforcement concerning the tension between privacy and national security discussed in the Dutch House of Representatives considering the adoption of the new Act on the Intelligence- and Security Services (Wiv)? In the body of knowledge, the most important concepts are discussed. Data for this study are obtained from the Dutch governmental website. Official documents such as letters from the government and parliamentary debates are examined. The research question is answered by analysing the parliamentary documents by means of a combination of content and discourse analysis. The research results show that the conceptual distinction made in literature between both perspectives, is in reality difficult to distinguish precisely. Moreover, a fundamental discussion about the perspectives lacked in the discussion preceding the adoption of the Wiv. A limitation of this study is that this is the first attempt to systematically examine whether the two distinctive perspectives that appear in academic literature and discussions, appear in political discussions as well. Finally, the study can serve as a guideline for future research. It is suggested, given its societal relevance, to repeat this research in other countries or to conduct it on other cases.
II Table of contents
Abstract ... I List of acronyms ... III List of tables ... III
1. Introduction ... 1
1.1. Problem outline ... 1
1.2. Research question and sub-questions ... 3
1.3. Academic and societal relevance ... 3
1.4. Reading guide ... 4
2. Body of knowledge ... 5
2.1 Essence of the Dutch intelligence- and security services ... 5
2.2 National security ... 6 2.3 Privacy ... 10 2.4 Two perspectives ... 14 3. Methods ... 18 3.1 Research design ... 18 3.2 Research method ... 18 3.3 Operationalisation ... 19 3.4 Data collection ... 22 3.5 Data analysis ... 24
3.6 Validity and reliability ... 24
4 The Wiv... 27
4.1 Background information Wiv ... 27
4.2 Adjustments legislation 2003 and 2006 ... 27
4.3 Process Wiv 2017 ... 29
5 Analysis ... 30
5.1 Analysis of the official documents ... 30
5.2 Discussion ... 42
6 Conclusion ... 46
6.1 Discussion ... 46
6.2 Conclusion ... 47
6.3 Limitations and suggestions for future research ... 47
7 Bibliography... 49
8 Appendices ... 52
Appendix 1: Translations ... 52
Appendix 2: Data collection ... 53
III List of acronyms
The following table contains various abbreviations used throughout this thesis. The page on which each one is defined or first used is also given. The abbreviations of the political parties are used in the fifth chapter, the analysis, without further explanation in order to keep the text readable.
Table 1: List of acronyms
Acronym Meaning Page
AIVD Algemene Inlichtingen- en Veiligheidsdienst 1
ECHR European Convention on human Rights 6
ECtHR European Court of Human Rights 9
MIVD Militaire Inlichtingen- en Veiligheidsdienst 28
Wiv Wet op de inlichtingen- en veiligheidsdiensten 2
CDA Christen-Democratisch Appèl 38
CU ChristenUnie 41
DENK Denk 41
D66 Democraten 66 36
FVD Forum voor Democratie 41
GL GroenLinks 32
PvdA Partij van de Arbeid 32
PvdD Partij voor de Dieren 41
PVV Partij voor de Vrijheid 32
SGP Staatkundig Gereformeerde Partij 38
SP Socialistische Partij 37
VVD Volkspartij voor Vrijheid en Democratie 38
50+ 50Plus 41
List of tables
Table 1: List of acronyms ... III Table 2: Operationalisation table ... 20 Table 3: Translations indicators ... 52 Table 4: Selected documents ... 54
1 1. Introduction
1.1. Problem outline
The 9/11 attacks in the United States in 2001 and the Madrid train bombings in 2004 have contributed to a significant change in the international security world. In the same time period, the murder on Pim Fortuyn in 2002 and the murder on Theo van Gogh in 2004 have significantly impacted the public perception of safety in the Netherlands.12 Safety is mainly perceived as a sentimental issue in the Netherlands.3 The described events subsequently concretized the realisation that attacks could occur in the Western world, Europe or even the Netherlands. In order to protect the state and its citizens it was necessary for security agencies to adjust or expand its tasks to this newly developing threat. This threat that derived from multiple attacks, was dominated by religious inspired terrorism and had an endogenous character.4 The AIVD (Algemene Inlichtingen- en Veiligheidsdienst)5 is the major actor in the field of intelligence- and security in the Netherlands and accordingly responsible for establishing its security. Thus, rather than the traditional focus on nation states during the Cold War period, the agencies now focused more on international terrorist networks.
Also, a rapid change of technology emerged in the last two decades; the technological communication devices used now are vastly different than the ones that were used in the beginning of the 21st century.6 These developments contributed to the communication capabilities of threats or targets.7 Citizens as well as malicious people could take advantage of newly developed technologies.8 Both changes in threats and technological developments illustrate that national security demands can change over time.
1 Abels, P.H.A.M. & Willemse, R. (2004). Veiligheidsdienst in verandering; de BVD/AIVD sinds het einde van
de Koude Oorlog. Justitiële Verkenningen. Themanummer Inlichtingendiensten. pp.83-84.
2 Ministerie van Binnenlandse Zaken en Koninkrijksrelaties. (2006). De gewelddadige jihad in Nederland: actuele
trends in de islamitisch-terroristische dreiging. Retrieved from: https://www.aivd.nl/publicaties/publicaties/ 2006/03/30/de-gewelddadige-jihad-in-nederland p.7
3 TNS Nipo. (2007). Beeldvorming van het Nederlands publiek over de AIVD: een kwalitatief onderzoek naar
imago en verwachtingen. Amsterdam. p.4.
4 Ministerie van Binnenlandse Zaken en Koninkrijksrelaties. (2006). De gewelddadige jihad in Nederland: actuele
trends in de islamitisch-terroristische dreiging. Retrieved from: https://www.aivd.nl/publicaties/publicaties/ 2006/03/30/de-gewelddadige-jihad-in-nederland p.5
5 The BVD was in charge of security and intelligence in the Netherlands prior to the establishment of the AIVD.
The AIVD was founded in 2002. See: Staatsblad 2002 148, Art. 1.
6 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en veiligheidsdiensten.
pp.11-12 Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten
7 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en veiligheidsdiensten.
pp.6-7 Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten.
8 Commissie-Dessens. (2013). Evaluatie Wet op de inlichtingen- en veiligheidsdiensten 2002: naar een nieuwe balans tussen bevoegdheden en waarborgen. pp.8-9
2 Far-reaching methods could be used by the agencies to reduce or eliminate a potential threat when deemed necessary.9 These methods aimed at achieving national security could violate fundamental rights of non-targets. An example of a method that could violate fundamental rights of non-targets is the authorization to tap and record any form of conversation, telecommunication or data transfer using technological resources.10 This method is aimed to investigate targets; however, it could unintentionally involve non-targets. Following this idea, it could be stated that in order to protect the fundamental right of liberty of all citizens the infringement of specific fundamental rights of non-targets is sometimes deemed necessary. If national security interests and civil liberties are considered, the predominated idea is that both need to be balanced by trade-offs. “Almost everyone - citizens, policy makers, political pundits, and scholars - approaches the formulation of counterterrorism policies as a balancing act between the allegedly competing values of privacy and security.”11 Balancing national security against other values such as civil liberties cause people to choose for security. Thus, a balance between both interests includes sacrifices. In contrast, the less dominant academic idea represents the concept that it is possible to mutually reinforce both interests. The academics representing this idea argue that balancing two concepts with different values cause people to choose for security rather than privacy interests. As a consequence, privacy rights are sacrificed too easily. 12 It is, according to them, falsely assumed that the concepts need to be mutually exclusive.13 These are two different perspectives to approach the privacy versus security tension. This thesis aims to examine whether these two contradicting perspectives were used in the governments’ argumentation preceding the adoption of the new Act on Intelligence- and security services (Wiv) in the Netherlands.
Those academic use different words to indicate one of the two central concepts of this study. In the academic world and practice different words are used to describe the concept of privacy e.g. ethics, rights or civil liberties. In this thesis, the term privacy represents all values concerning ethics, rights and civil liberties of Dutch citizens. The body of knowledge elaborates on the differences in terminology, but from now on the word privacy is used. The term (national) security is explained and demarked in the body of knowledge.
9 See: Staatsblad 2002 148, Art. 20-30 10 Staatsblad 2002 148, Art. 25, section 1.
11 Dragu, T. (2011). Is there a trade-off between security and liberty? Executive bias, privacy protections, and
terrorism prevention. American Political Science Review, 105(1). p.64
12 Chandler, J. (2009). Privacy versus national security: clarifying the trade-off. Lessons from the identity trail:
anonymity, privacy and identity in a networked society. Oxford University Press. Oxford. p.124
13 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security (Introduction). Yale
3 1.2. Research question and sub-questions
The aim of this research is to answer the question: “To what extent are the two perspectives in terms of trade-off or mutual reinforcement concerning the tension between privacy and national security discussed in the Dutch House of Representatives considering the adoption of the new Act on the Intelligence- and Security Services (Wiv)?”
According to this question, the main objective is to examine whether the two perspectives were discussed in the House of Representatives. With “two perspectives” are meant the two viewpoints towards the discussion considering the tension between privacy and security. The first perspective includes the thought that privacy and security can be balanced by traded-offs. This perspective seems more embraced in the international academic literature, as articles discussing a balance between both concepts are abound. The second and less dominant perspective implies that the concepts of privacy and national security should not necessarily be traded-off against each other in order to achieve a balance. Moreover, it is argued that the concepts of privacy and national security are interrelated and should and could be mutually reinforced. It is, according to this perspective, falsely assumed that the concepts need to be mutually exclusive. This thesis aims to examine whether this less dominant perspective is primarily theoretical, or that it also occurs in practice. As a final point, the concepts used in the body of knowledge are approached from intelligence- and security context.
In order to provide an answer to the research question the following sub-questions are assessed: 1. To what extent are the two perspectives in terms of trade-off or mutual reinforcement
considering the tension between privacy and security, in the context of intelligence- and security services, discussed in academic literature?
2. How did the parties and the cabinet discuss the two perspectives in terms of trade-off or mutual reinforcement considering the tension between privacy and security preceding the adoption of the Wiv?
1.3. Academic and societal relevance
The current study has both academic and societal relevance. The academic significance of this study lies in its effort to examine the two academic perspectives and search for these thoughts in practice. Is there a division in practice or does this division merely appear in academic discussions? The knowledge gap of this thesis lies in the lack of a practical application of the
4 two perspectives in academic research. Additionally, an overview of the entire discussion on the new act in the House of Representatives is lacking and could be valuable to further research. Namely, the research method could be used for comparable studies; other countries’ laws on intelligence- and security services, and developments preceding adoption as well as adaptations in legislation could be researched. Another example is the usability for future adaptations in legislation on the Wiv.
This topic is societally relevant, as the reform of the Wiv resulted in a national debate and an advisory referendum submitted by the so-called opponents. Insight into the intelligence world or plans to extend the competences have resulted in discussions fed by an enormous amount of news coverage. The advisory referendum indicates general societal interest into the topic. As such, this thesis aims to contribute to the overall knowledge regarding how the Wiv is created and what it entails. Furthermore, it is imperative for the safety and security of people to have well-functioning intelligence agencies. If security is neglected it could cause damage and loss. On the other hand, if a persons’ privacy is violated it could also lead to damage and loss for those concerned. Changes in the legislation could impact both civil liberties and security of Dutch people; which is naturally relevant to know for society. It is therefore interesting and relevant to shed light on the developments and debate preceding the implementation of the new Act on the intelligence- and security services in the Netherlands.
1.4. Reading guide
This thesis is structured as follows. In the first chapter, an introduction is given and the academic and societal relevance of the research topic and the research question are introduced. In order to answer the research question, the second chapter discusses the standing body of knowledge; two perspectives in terms of balance or mutual reinforcement considering the tension between privacy and security are clarified. Also, the essence of the Dutch intelligence- and security services is briefly discussed. The research design and methods, the operationalization of the most important concepts and the data selection as well as the validity and reliability are presented in the third chapter. The fourth chapter includes some background information of the former Wiv and the major adjustments of the past years as an introductory part of the analysis. Following this, the fifth chapter, is concerned with the data processing and presents the results. The sixth chapter provides an answer to the main research question and sub-questions and discusses the results and limitations of the executed research.
5 2. Body of knowledge
Considerations towards privacy and national security change over time as new issues are involved, such as events or circumstances that (re)shape general reasoning. For example, after the 9/11 attacks, the United States introduced mass-surveillance within the States to gain information on citizens with the aim of protecting them.14 The shift in the security field demanded for the extension of the legal competences of intelligence- and security agencies all over the world. As explained in the introduction, a rapid change of technology emerged in the last two decades. The technological developments contributed to the communication capabilities of threats or targets.15 Citizens as well as malicious people could take advantage of newly developed technologies.16 These examples illustrate that national security demands can change over time. The concepts of privacy on the one hand and national security on the other are tensely connected. Tensions between both concepts can occur when security demands change.
This thesis discusses both concepts from an intelligence perspective as such it is ought to be necessary to introduce this chapter by a brief explanation of the essence of intelligence- and security work. Furthermore, the chapter aims to focus on the discussion of two interests; national security and privacy. Both concepts are thoroughly explained in separate paragraphs. Furthermore, the two perspectives or two viewpoints considering the tension between privacy and national security are outlined.
2.1 Essence of the Dutch intelligence- and security services
The essence of intelligence work is to detect potential threats in an early stage. For example, “terrorist prevention is an explorative activity that entails gathering and analysing data about a large number of individuals and organizations, most of whom are unlikely to pose any threat of terrorist activity.” 17 Thus, the primary objective is to gather information prior to a punishable offence. Intelligence employees are required to have a specific mindset which enables them to
14 Lopach, J. J. & Luckowski, J. A. (2006). National security and civil liberty: striking the balance. The Social
Studies. 97(6). p.245
15 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en veiligheidsdiensten.
pp.6-7 Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten
16 Commissie-Dessens. (2013). Evaluatie Wet op de inlichtingen- en veiligheidsdiensten 2002: naar een nieuwe
balans tussen bevoegdheden en waarborgen. pp.8-9
17 Posner, R. (2006). Not a Suicide Pact: the constitution in a time of national emergency. Oxford: Oxford
University Press. In: Dragu, T. (2011). Is there a trade-off between security and liberty? Executive bias, privacy protections, and terrorism prevention. American Political Science Review. 105(1). p.65.
6 identify potential threats of the broadest range to the state. More specifically, they have to think the unthinkable.
This particular characteristic differentiates intelligence work from law enforcement practices. Whereas prediction is one of the primary tasks of the intelligence community, ensuring obedience to the law with retributive measures is a task of the law enforcement community. The following quote points out this difference more precisely.
“The information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.” 18
The legislation for intelligence communities contains exceptions keeping the predictive nature and early stage detecting in mind. International privacy treaties make statutory exceptions for the working method of intelligence agencies in order to protect national security. According to Article 8 of the European Convention of Human Rights (ECHR) “everyone has the right to respect for his private and family life, his home and his correspondence.” This law also includes that governments and governmental organizations have a responsibility to respect and protect this fundamental (democratic) right.19 However, if intelligence agencies could substantiate why they are gathering data or researching specific areas or individuals; they would not violate this law. Thus, if individuals or organizations threaten the national security, democratic order or other vital interests of the state, agencies could make exceptions for privacy rights.
2.2 National security
The concept of security is called an “essentially contested concept”20. This means that a generally agreed upon definition is lacking. The interest of national security is one aspect of the overarching concept of security. In the interest of this thesis, the aim is not to define or to
18 Posner R. (2005). Our Domestic Intelligence Crisis. The Washington Post. In: Dragu, T. (2011). Is there a
trade-off between security and liberty? Executive bias, privacy protections, and terrorism prevention. American Political
Science Review. 105(1). p.65.
19 Art. 8 ECHR. Retrieved from: http://www.echr.coe.int/Documents/Convention_ENG.pdf 20 Baldwin, D. A. (1997). The concept of security. Review of international studies. 23(1). p.10
7 conceptualize the general definition of security, but to pay attention to the aspect of national security in the context of intelligence- and security services.
The concept of security as well as the concept of privacy dates back to antiquity. For a long time period, people yearned for protection from the government against thieves, bandits and other malicious people. Furthermore, they wanted for the government to ensure social order against all forms of crimes. And yet, many governments lacked the ability to ensure this protection. Only in the 20th century police forces changed into structured professional organizations.21 As a reaction to different developments in the beginning of the 20th century, the first intelligence agency was founded; its tasks, however, mostly concerned military matters.22 In the end of the 20th century and the beginning of the 21st century, a shift in focus from state to non-state actors as the main threat to national security occurred.23 This paradigm shift manifested itself after the 9/11 attacks. It became necessary for intelligence- and security agencies to adjust or expand their tasks to this newly developing threat. Thus, rather than the traditional focus on nation states during the Cold War period, the agencies became more focused on international terrorist networks.24
One of the fundamental tasks of the state is to ensure safety and security for its citizens.25 According to Warhawsky, it could be claimed that a citizen of a nation has a right to security and protection from attacks by outsiders.26 Intelligence- and security agencies and the police are the actors that need to accomplish this core task.27 The approach to achieve this task is different for these actors. Namely, intelligence- and security agencies’ work is to detect potential threats in an early stage. Its primary objective is to gather information prior to a punishable offence. Prediction is a crucial part of the working method of the agencies. This particular characteristic differentiates intelligence work from law enforcement practices. To illustrate: after an attack, law enforcement and criminal justice would try to find out what happened and who the offender is. The intelligence- and security services would try to gather
21 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security (Introduction). Yale
University Press.
22 Hijzen, C. W. (2016). Vijandbeelden: de veiligheidsdiensten en de democratie, 1912-1992. Boom. p.14. 23 Warshawsky, M. (2013). The balance to be found between civil liberties and national security. The RUSI
Journal. 158(2). pp.94-95.
24 Graaff, B., de (2004). Wie wint de ‘war on terrorism’? Justitiële verkenningen. 30. pp.63.
25 Eijkman, Q. & Weggemans, D. (2012). Open source intelligence and privacy dilemmas: Is it time to reassess
state accountability? Security and Human Rights. 4. p.285.
26 Warshawsky, M. (2013). The balance to be found between civil liberties and national security. The RUSI
Journal. 158(2). p.95.
27 Eijkman, Q. & Weggemans, D. (2012). Open source intelligence and privacy dilemmas: Is it time to reassess
8 indications to prevent future attacks from happening. Law enforcement is entrusted with detecting punishable offences, while intelligence- and security agencies carry out research onto threats against national security.28 More specific, intelligence- and security agencies have the obligation to conduct research on persons and organizations (targets) that are seriously suspected to pose, with their activities and goals, a threat to the existence of the democratic legal order, the security of the state or its relevant interests.29
Security by intelligence agencies is often surrounded by secrecy as the agencies cannot be fully transparent about their actions which could lead to mistrust in the government.30 The general public, often informed by the media, frequently suspects the worst of intelligence efforts. Some worry about the potential ability of the intelligence- and security services to perform large scale information gathering processes.31 Additionally, they connect the demand for security to events of terrorism and crime.32 Safety is mainly perceived as a sentimental issue. As Cottey argued, “what constitutes security or a threat to security is subjective – it depends on perceptions of which communities, values and institutions matter, and the threats to those communities, values and institutions.”33 Thus, the imaging for the necessity of intelligence- and security services could change over time; a single attack could drastically impact or change the imaging of a country.
Oxford dictionary defines security as “the state of being free from danger or threat … the safety of a state or organization against criminal activity such as terrorism, theft, or espionage”.34 Thus, an absence of a threat and a focus on national or domestic security. This definition includes all threats that are man-made and preventable by legislation; some issues are excluded as they would be unpreventable by policy measures.35 However, it remains difficult or nearly impossible to clearly distinguish national security threats from other crimes
28 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en
veiligheidsdiensten. p.263. Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28 /memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten
29 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en veiligheidsdiensten.
p.25 Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten
30 Tweede Kamer, vergaderjaar 2016–2017, 34 588, nr.3, p.130
31 Van der Pol, G., Modderkolk, H., de Vries, J., Twigt, S. & Kranen, H. (2017). De 'sleepnetwet' uitgelegd in 12
heldere vragen en antwoorden. De Volkskrant. Retrieved from: https://www.volkskrant.nl/ kijkverder/2017/sleepnet/
32 Pulver, A. & Medina R.M. (2018) A review of security and privacy concerns in digital intelligence collections.
Intelligence and National Security. p.251.
33 Cottey, A. (2012). Security in 21st Century Europe. Macmillan International Higher Education. p.8. 34 Oxford Dictionary. (2018). Security. Retrieved from: https://en.oxforddictionaries.com/definition/security 35 Warshawsky, M. (2013). The balance to be found between civil liberties and national security. The RUSI
9 in practice. Solove claims that this assessment problem could lead to misuse of the term national security by the agencies. The agencies could easily justify surveillance or secrecy as well as violations of civil liberties.36
Chandler distinguishes objective security from subjective security in which objective means “a low probability of danger” and subjective “a feeling of security or the absence of fear that acquired values are threatened”.37 The latter one often concerns the context of terrorism as it induces fear rather than real physical threats. Both are however required to achieve security. In addition, she distinguishes national security from a broader defined human security in which the latter includes economic, cultural, political or environmental values. She concludes that after the 9/11 attacks in the context of counterterrorism and considering the trade-off between “privacy” and “security” often a narrow definition of security is adopted. Thus, “the pursuit of security… intended to defend the physical security of people and property as well as the stability of the state”.38
The term national security is broadly defined in the ECHR There is no conclusive definition of the term national security, partly as a consequence of varying threats that are unable to be predicted or be demarked in advance. The outlines of the scope of the concept are further elaborated in the jurisprudence of the European Court of Human Rights (ECtHR). Article 8 of the ECHR has embedded exceptions for intelligence work or threats to national security. Governments have to respect and protect this privacy right; however, this law can be infringed in special circumstances and only if necessary for the well-being of democratic society.39 Thus, in the interest of national security exceptions could be made. Problematically, words such as democratic legal order and vital interests of the state as well as the concept of national security are not or broadly defined in law. Sometimes the scopes of the definitions are further elaborated in jurisprudence. National security compromises the protection of national security and democracy against espionage, the infringement of state- or military secrets, support for or
36 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security (Introduction). Yale
University Press. p.66
37 Chandler, J. (2009). Privacy versus national security: clarifying the trade-off. Lessons from the identity trail:
anonymity, privacy and identity in a networked society. Oxford University Press. Oxford. p.123.
38 Chandler, J. (2009). Privacy versus national security: clarifying the trade-off. Lessons from the identity trail:
anonymity, privacy and identity in a networked society. Oxford University Press. Oxford. p.124.
10 terrorist activities, incitements of violence and the publication of writings that can damage the functioning of the state security service of a country.40
This brief overview indicates that the concept of national security is a flexible notion that is difficult to determine. Abuse or misuse of these concepts by the intelligence- and security agencies is possible as legislation lacks demarcation. Different values have to be protected to achieve national security. Examples are the maintaining of the democratic legal order or democratic society, the security of the state or its relevant interests41, public safety or the economic wellbeing of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. Moreover, on the website of the Dutch National Coordinator Counterterrorism and Security the vital interests of the state could include territorial, economical, ecological or physical security and social political stability.42 It could be concluded that the term from an intelligence perspective and at least includes the protection of the state and democratic society against espionage, violation of state- and military secrets, the support of terrorist activities, the incitement of violence and the publication of writings that van damage the functioning of the state.
2.3 Privacy
People have valued privacy since antiquity. Over the years, the right to privacy has appeared world-wide in many different dimensions.43 The desire for individual privacy is inherently determined as all individuals experience that there are some aspects of life that are naturally private and not suitable for general observation.44 Although, many people have an idea what privacy includes, the concept is mutable within different contexts.45 This, because privacy is a complex notion to define in part due to its cultural and species-dependency. This conceptual struggle does not subvert its significance.46 Often the emphasis is put on the lack of academic
40 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en veiligheidsdiensten.
p.263 Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten
41 Rijksoverheid. (2018). Memorie van toelichting inzake wijziging Wet op de inlichtingen- en veiligheidsdiensten.
p.25 Retrieved from: https://www.rijksoverheid.nl/documenten/kamerstukken/2016/10/28/memorie-van-toelichting-inzake-wijziging-wet-op-de-inlichtingen-en-veiligheidsdiensten
42 NCTV. (2018). Nationale veiligheid. Retrieved from: https://www.nctv.nl/organisatie/nationale_veiligheid/
index.aspx
43 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security (Introduction). Yale
University Press.
44 Rengel, A. (2013). Privacy in the 21st Century. Martinus Nijhoff Publishers. pp.27,31.
45 Millet, L.I., Lin, H.S., and Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age:
Executive Summary. Journal of Privacy and Confidentiality. 2(1). p.17.
11 consensus. “Time and again philosophers, legal theorists, and jurists have lamented the great difficulty in reaching a satisfying conception of privacy”.47 As a result there is no generally agreed upon definition of privacy. As mentioned in the introduction, different authors use different words to describe the concept that is traded-off for increased national security: e.g. privacy, ethics, rights or civil liberties.
Any discussion on privacy needs a clear specification on what is being kept private and to which parties’ privacy is being invoked. Moreover, privacy involves anonymity. For some actors it is imperative to impute a certain actor to a specific action. Some essential elements are specified. “Firstly, what is the information that is being kept private (and with whom is that information associated)? Secondly, from whom is the information being withheld? And thirdly, what purposes would be served by withholding or not withholding the information, and whose interests do those purposes serve?”.48
According to Roessler and Mokrosinska privacy is not purely an individual’s right. This means that not only individuals benefit from privacy, but also societies as a whole; privacy serves a collective interest. For example, privacy is a characteristic of a democracy; totalitarian systems succeed under oppression of privacy. Moreover, privacy provides insurance to critical privacy principles such as freedom of speech and freedom of thought or religion.49 Solove argues that if the interest of one individual is balanced against the interests of the whole society, society will generally win and individual rights could not be justified. Privacy should therefore be understood as a societal value rather than an individual one.50
Other authors put more emphasis to the concept of information privacy. The fact that information is valuable leads to the existence of protection of privacy, as information would not be gathered if it had no value.51 Westin, among other authors, has described privacy in terms of information control. “Privacy is the claim of individuals, groups or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”.52 According to Fried “Privacy is not simply an absence of information about us in the minds of others; rather it is the control we have over information about ourselves”.53 Critics
47 Solove, D. J. (2002). Conceptualizing privacy. California Law Review. 90(4). p.1088.
48 Millet, L.I., Lin, H.S. & Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age:
Executive Summary. Journal of Privacy and Confidentiality. 2(1). p.7.
49 Roessler, B. & Mokrosinska, D. (Eds.). (2015). Social dimensions of privacy: interdisciplinary perspectives.
Cambridge University Press. p.228.
50 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security. Yale University Press.
pp.47-50.
51 Millet, L.I., Lin, H.S. & Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age:
Executive Summary. Journal of Privacy and Confidentiality. 2(1). pp.3-4.
52 Westin, A. F. (1967). Privacy and freedom. Ig Publishing. New York: Atheneum. p.7. 53 Fried, C. (1968). Privacy. The Yale Law Journal. 77(2). pp. 482-483.
12 argue that this conceptualization fails to define what is meant by control.54 Rengel describes privacy as the control over personal information or as “the sphere of our lives that we keep to ourselves, and from which we can keep everyone else out, and that in itself is intrinsically beneficiary to preserve our sense of self”.55
Other authors claim that the unfixed and circumstance dependent character of privacy sparked difficulties in the determination of privacy violations. As argued, “a person has a right to (informational) privacy in a domain if and only if that person has the right to control access to personal information in that domain”.56
Some academics shed light on the impact of technology on privacy; “one of the most discussed and worried-about aspects of today’s information age”.57 As a result of changes in technologies people use more, and more often technological devices. New trends in technologies affect the vulnerability of privacy such as the increase of hardware (smartphones, pc’s, smartwatches etc), increasing connectedness of hardware, sophisticated software that allows the analysis of gathered data and the growth of organizations that collect and analyse data. These trends in combination with the reproducible character of information make (information) privacy more vulnerable to infringement.The effect of these developments has resulted in capabilities of the collection, compilation, evaluation and exchange of information about and related to individuals or groups of individuals that were not deemed possible a mere 10 years ago.58 The tremendous amounts of stored data recently raised awareness. Intelligence- and security services can exploit these often open-source data such as social media. Thus, intelligence deduced from Open Source Information.
Eijkman and Weggemans focus on the legitimacy of the use of Open Source Information as tool for security governance. Some people argue that this information is open to public and can therefore be used as intelligence gathering. However, others argue that effects on human rights need to be regarded. “Just because data is accessible doesn’t mean that using it is ethical”59. People who are unaware of this profiling could change their behaviour afterwards, which could be regarded as violation of privacy; when privacy is defined as “the freedom from
54 Solove, D. J. (2002). Conceptualizing privacy. California Law Review. 90(4). p.1112. 55 Rengel, A. (2013). Privacy in the 21st Century. Martinus Nijhoff Publishers. p.32.
56 Pulver, A. & Medina R. M. (2018). A review of security and privacy concerns in digital intelligence collections.
Intelligence and National Security. p.246.
57 Millet, L.I., Lin, H.S. & Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age:
Thinking about privacy. Journal of Privacy and Confidentiality. 2(1). p.19.
58 Millet, L.I., Lin, H.S. & Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age:
Technological drivers. Journal of Privacy and Confidentiality. 2(1). pp.88-89.
59 Boyd, D. (2010). Privacy and publicity in the context of big data. In Keynote Talk of The 19th Int’l Conf. on
13 unreasonable constraints on the construction of one’s identity”. Additionally, people are concerned about the disconnection from the context of (digital) collected data.60
Because of the expeditious nature of information technologies’ advancement, it is evident that its potential, speed, capabilities and its impact continue to develop increasingly fast. Traditionally, the development and adaptation of privacy law occurred rapid enough to ensure it would meet the new demands and privacy threats arising from any advancement or development in information technology. However, the information revolution of the past years has been occurring at an increasingly rapid pace while also affecting many different areas of privacy law that the conventional adaptive legislative and judicial process was no longer capable of keeping up resulting in failure to effectively and appropriately address new digital privacy concerns.61
Besides this, privacy in the Netherlands is protected by laws. However, these laws have embedded exceptions for intelligence work and threats to national security. As previously stated, Article 8 of the European Convention of Human rights includes that governments and governmental organizations have a responsibility to respect and protect this fundamental (democratic) right.62 The Convention Rights can be classified in three distinct categories: absolute, limited and qualified. These categories inform whether authorities are allowed to interfere in human rights. Absolute rights cannot be infringed under any circumstances, limited rights come with exceptions63 and qualified rights can be infringed in special circumstances and only if necessary for the well-being of democratic society. The right of privacy established in Article 8 belongs to the latter category.64
This brief summary of conceptualizations indicates the variety and comprehensiveness of the definitions that have been offered in academic literature; its meaning could differ by situation and circumstance. It is therefore challenging to determine whether a person’s privacy is violated.65 The definition used in this study is related to modern technology and information. Privacy it is the control we have over information about ourselves66 or more specifically the claim of individuals, groups, or institutions to determine for themselves when, how, and to what
60 Eijkman, Q. & Weggemans, D. (2012). Open source intelligence and privacy dilemmas: Is it time to reassess
state accountability? Security and Human Rights. 4. pp.288-292.
61 Rengel, A. (2013). Privacy in the 21st Century. Martinus Nijhoff Publishers. p.41. 62 Art. 8 ECHR. Retrieved from: http://www.echr.coe.int/Documents/Convention_ENG.pdf
63 See: Art. 15 ECHR. Retrieved from: https://www.echr.coe.int/Documents/Convention_ENG.pdf 64 Art. 8, section 2 ECHR. Retrieved from: https://www.echr.coe.int/Documents/Convention_ENG.pdf
65 Pulver, A. & Medina R. M. (2018) A review of security and privacy concerns in digital intelligence collections.
Intelligence and National Security. p.246.
14 extent information about them is communicated to others67. It is a narrow conceptualization of privacy as it excludes those aspects of privacy that are not informational.
2.4 Two perspectives
There are two perspectives detected in academic literature towards the discussion considering the tension between privacy and (national) security. The first includes the thought that privacy and national security can be balanced by trade-offs. The second perspective implies that the concepts of privacy and national security should not necessarily be traded-off against each other in order to achieve a balance.
Warshawsky emphasizes the need for a balance between national security and civil liberty. This author uses the concept of civil liberty instead of privacy. Civil liberty is used as an overarching concept that among other things includes the right to privacy. Fundamentally, it includes the freedom to practice an individual’s rights which needs to be maintained and preserved by the state. According to her, a balance between this concept and domestic security involves sacrifices on both sides. On the one hand, society needs to allow some intrusion by the government in order to provide security; on the other hand, safeguarding civil liberty results in an exchange of maximum security. The scales of balance should be flexible rather than fixed and changeable with time and the perception of threat.68
Posner and Vermeule outline a theory in their book which entails that “any increase in security requires a decrease in liberty”. This theory uses the economic contract curve to illustrate that no win-win improvements are possible. Every gain in privacy will lead to a loss of security and vice versa. However, this curve does not indicate an optimal point; this depends on the preferences or values of those concerned.69
Lowenthal emphasized that a trade-off between security and ethics could be accepted by the general public. He states that intelligence entails both ethical and moral dilemmas and that the existence of these dilemmas ensures that politicians have to make considerations with ethical and moral features. In the specific field of the intelligence world, the agencies “operate on the edge of acceptable morality”. Allegedly, the general public gives this field the benefit of the doubt; if the same techniques were used in other fields (private sector) it could be perceived
67 Westin, A. F. (1967). Privacy and freedom. Ig Publishing. New York: Atheneum. p.7.
68 Warshawsky, M. (2013). The balance to be found between civil liberties and national security. The RUSI
Journal. 158(2). p.94.
69 Posner, E. A. & Vermeule, A. (2007). Terror in the balance: Security, liberty, and the courts. Oxford University
15 as undesirable.70 He emphasizes that: “For most citizens, the trade-off between ethics and increased security is acceptable, provided that the intelligence community operates with rules, oversight, and accountability”.71
Some authors focus on the changes in technologies. They state that these changes have among other things intensified the debate on the topic and changed its focus.72 The increase of information technologies is logically connected to the use of these information technologies to protect the nation state. In this line of thought, it is not a question of whether, but rather what sort of surveillance state we will have.73 The tensions between individual privacy and national security are a consequence of the information gathering methods of intelligence agencies.74
Other authors have a different perspective towards the privacy and national security tension. They argue that balancing two concepts with different values cause people to choose for security rather than privacy. As a consequence, privacy (rights) are as a result sacrificed too easily.75 It is, according to them, falsely assumed that the concepts need to be mutually exclusive.76
According to Dragu, the prevailing paradigm that forms how we think about antiterrorism policies presupposes a necessary trade-off between civil liberties and security from terrorism. In this line of reasoning, an efficacious way to increase security is to reduce privacy protections. The only question remains to examine “whether privacy interests outweigh security gains”. From this point of view, security wins from privacy protections.77 In his article Dragu develops a game-theoretic model to examine the assumption that a decrease in privacy protections increases national security from terrorism. He argues that this widely acknowledged assumption is not addressed by scholars or practitioners. Two conclusions were made. “First, … reducing privacy protections does not necessarily increase security from terrorism”. “Second, … the
70 Lowenthal, M. M. (2016). Intelligence: from secrets to policy. CQ press. p.460. 71 Lowenthal, M. M. (2016). Intelligence: from secrets to policy. CQ press. p.460.
72 Millet, L.I., Lin, H.S. & Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age.
Journal of Privacy and Confidentiality. 2(1). p.251.
73 Pulver, A. & Medina R.M., A review of security and privacy concerns in digital intelligence collections.
Intelligence and National Security. p.241.
74 Millet, L.I., Lin, H.S. & Waldo, J. (2010). Engaging Privacy and Information Technology in a Digital Age.
Journal of Privacy and Confidentiality. 2(1). p.277.
75 Chandler, J. (2009). Privacy versus national security: clarifying the trade-off. Lessons from the identity trail:
anonymity, privacy and identity in a networked society. Oxford University Press. Oxford. p.124.
76 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security (Introduction). Yale
University Press.p.34.
77 Dragu, T. (2011). Is there a trade-off between security and liberty? Executive bias, privacy protections, and
16 antiterrorist agency will always want less privacy … even when that reduction harms security from terrorism.”78
Gill and Phythian use the concepts security and rights and call the frequently used balancing between both “essentially inappropriate”. “The idea of balance is misplaced … rights and security cannot simply be traded off against each other”.79 In their view, the only way to minimize harm done by the agencies and to respect human rights and freedoms is by resisting balancing.80 They also argue that there is little evidence confirming this trade-off. Corresponding, Schneider raises the question whether the exchange or balancing of privacy and security linkage is valid.81
Solove elaborates in his book on the same claim and even calls the trade-off between privacy and security false. Privacy loses to security in debates, because people think that there is an “all or nothing fallacy”. Meaning that there needs to be a zero-sum trade-off of protecting privacy for security measures. However, this is false, sacrificing privacy does not necessarily result in more or better security, nor do all security measures necessarily harm privacy. This results in an uneven debate; if the choice is between either a security measure or nothing at all the debate headed toward the security side. This reasoning is logical, because privacy concerns are more abstract than security concerns. People gladly give up their privacy if it secures them from for example a terrorist attack. The security camp of the debate attempted to persuade others to accept this trade-off. Finally, the law suffers of the same structural problems. Instead of asking how privacy should be protected it fixates on the question of whether it should be.82 Regulations or monitoring measures do not significantly diminish security measures which indicates that privacy protection is attainable.83
Finally, it is argued that the concepts are interrelated rather than antagonistic. Thus, the trade-off is not just false, both concepts should be mutually reinforcing. Omand et. al. argue that the public goods of national security, citizens’ liberty and privacy and the overall wellbeing of a nation reinforce one another.84 Cavoukian focuses on technology and argues that is it possible to have both privacy and security without trade-offs. As such, “adding privacy
78 Dragu, T. (2011). Is there a trade-off between security and liberty? Executive bias, privacy protections, and
terrorism prevention. American Political Science Review, 105(1). pp.64,74-75.
79 Gill, P., & Phythian, M. (2006). Intelligence in an insecure world. Polity. p.155. 80 Idem.
81 Scheider, B. (2001). Protecting privacy and liberty: the events of 11 Septermber offer a rrare chace to rethink
public security. Macmillan Publishers Ltd.
82 Solove, D. J. (2011). Nothing to hide: The false tradeoff between privacy and security (Introduction). Yale
University Press.
83 Solove, D. J. (2011). The all-or noting Fallacy. in Nothing to hide: The false tradeoff between privacy and
security. Yale University Press. pp.33-37.
17 measures to surveillance systems need not weaken security or functionality but rather, could in fact enhance the overall design”. In this way, a positive-sum can be achieved, by increasing both concepts.85
To conclude, two different competitive interpretations towards the tension between privacy and security are detected in academic notions and are presented in the last paragraph. Both perspectives concerned two interests: national security on the one hand and privacy e.g. (human) rights, ethics or civil liberties on the other. The first perspective was more embraced in academic literature and assumes that there needs to be a form of a trade-off between the two concepts; thus, something of security on the one side and something of privacy on the other. The second perspective was less dominant and argued the opposite of the first perspective by representing the statement that both concepts can be mutually reinforced without trade-offs. According to this perspective, it is falsely assumed that the concepts need to be mutually exclusive.
18 3. Methods
This chapter discusses the methodology used to find an answer to the research question while at the same time clarifying and justifying the selected methods. The research design, method, main indictors are explained as well as the data collection and data analysis. Furthermore, the internal and external validity and reliability are discussed.
3.1 Research design
This research study has a qualitative research method and uses a single case study design. A single case study design entails an intensive qualitative study of a single case to build an explanation about its context, particularity and complexity. In essence, this thesis extensively analyses parliamentary documents on the renewed Wiv in a demarked time period. The adaption of the Wiv is chosen to detect the two perspectives towards the tension between privacy and security of the Dutch government.
A distinction is made between the unit of analysis and the unit of observation. The unit of observation is the aspect we observe in research in order to make statements about the unit of analysis. In this study the case is focused on the period preceding the adoption of the Wiv; the global unit of analysis entails the discussions in the Dutch House of Representatives. The observations that reveal something about the unit of analysis are the parliamentary documents of the actions preceding the adoption of the renewed Wiv. In short, the documents are observed in order to make statements about the content of the discussions.
3.2 Research method
The choice of research method depends for the most part on the nature of the research question. For this thesis, qualitative methods are ought to be an appropriate tool to analyse the research subject. This thesis used documents to examine the views of the parliamentarians and the government prior to the establishment of the renewed Wiv. Quantitative methods could not provide for the in-depth understanding of the perspectives and statements of the relevant actors. Thus, the method used is document analysis which entails the analysis of textual material derived from the Dutch state.
The procedures followed and steps taken to obtain a valid answer to the research question are explained. The first step of this study is to explain the concepts used in the research question. The body of knowledge contains an explanation of the two central perspectives as well as other
19 relevant concepts. The research conducted is based on these academic notions. This is a deductive approach to compose an operationalisation of the two perspectives. The second step is to collect data. The website of the Dutch House of Representatives is used to search for documents. These parliamentary documents are publicly available. The ultimate selection is based on the purposive sampling method that uses the research question as a guideline. The aim of the study is to detect and analyse the two perspectives in the discussions preceding the adoption of the renewed Wiv. The documents are selected by this criterium. Paragraph 3.4 elaborates on this. The third step is to highlight all relevant quotes, sentences or paragraphs based on the operationalisation of the perspectives. If found necessary, the operationalisation is enriched with new indicators derived from data which has an inductive character. The fourth step is to examine and interpret all highlighted quotations using a combination of content and discourse analysis as explained in paragraph 3.5 and to present the results chronologically in the fifth chapter. The last step is to answer the research question.
3.3 Operationalisation
The two perspectives need to be operationalised in order to effectively function as guidelines. As explained, the operationalisation uses a partly deductive and inductive approach. Firstly, the meaning of the two perspectives that are thoroughly outlined in the body of knowledge is recapitulated. Secondly, the indicators are presented in a scheme.
1. The first perspective includes the thought that privacy and security can be balanced by trade-offs. This perspective assumes that there needs to be a form of a trade-off between the two concepts; thus, something of security on the one side and something of privacy on the other. This perspective seemed more embraced in the international academic literature.
2. The second and less dominant perspective implies that the concepts of privacy and national security should not necessarily be traded-off against each other in order to achieve a balance. Moreover, it is argued that the concepts of privacy and national security are interrelated and should and can be mutually reinforced. It is, according to this perspective, falsely assumed that the concepts need to be mutually exclusive.
In the body of knowledge several academic notions towards the two perspectives are presented. These notions function as guidelines for the indicators. Additionally, the analysed documents
20 are used to detect indicators as well. Some words, sentences or metaphors detected in the documents represent one of each perspective. During the analyses these words are selected and used in the operationalisation table. The methods together form a partially inductive and a partially deductive approach. Thus, the indicators presented in table 2 are compiled from different sources either based on academic notions or derived from the analysed documents. Moreover, each indicator is substantiated or supported using examples.
Table 2: Operationalisation table
Perspectives Indicators
Trade-off a. Balance (in-, out of-, new-, -between) b. Equilibrium
c. Trade-off d. Consideration Mutual reinforcement e. Reinforce
f. Accompanying g. Mutually
h. Not opposites or conflicting interests and interrelation
Note: the indicators are translated from Dutch language. Appendix 1 table 3 presents the translations of the Dutch words.
The perspectives are based on the following academic notions:
Trade-off perspective:
• Warshawsky emphasizes the need for a balance between national security and civil liberty. Furthermore, she emphasizes a need for sacrifices on both sides.86
• Posner and Vermeule argue that every gain in privacy will lead to a loss of security and every loss in privacy will lead to a gain in security.87
• Lowenthal emphasizes that in the field of the intelligence world, the agencies “operate on the edge of acceptable morality”. 88 It could be argued that it is sometimes necessary for the agencies to impinge on civil liberties in order to ensure safety. Thus, civil liberties cannot be safeguarded as agencies could impinge on them.
Mutual reinforcement perspective:
86 Warshawsky, M. (2013). The balance to be found between civil liberties and national security. The RUSI
Journal. 158(2). p.94.
87 Posner, E. A. & Vermeule, A. (2007). Terror in the balance: Security, liberty, and the courts. Oxford University
Press on Demand. pp.25-26.
21 • Cavoukian argues that is it possible to have both privacy and security without
trade-offs.89
• Solove explains that sacrificing privacy does not necessarily result in more or better security, nor do all security measures necessarily harm privacy.90
• Solove argues that regulations or oversight do not significantly diminish security measures which indicates that privacy protection is attainable.91
The indicators are derived from the following words, phrases or academic notions:
a. This indicator is based on academic notions (deductive) and supported by phrases derived from data (inductive). A balance between on the one side the new and existing powers and on the other side the legal safeguards. The word balance appeared in various ways.92 In balance was often used by the proponents and out of balance by the opponents.
b. This indicator is primarily based on words and phrases derived from data (inductive). The word equilibrium is another word with the same meaning as the word balance.93 c. This indicator is based on academic notions (deductive). The word trade-off is used as
indicator as it underlines the aspect of a choice between two interests.
d. This indicator is primarily based on words and phrases derived from data (inductive). A consideration in this case is an action prior to the achievement of a balance. Considerations underline the necessity of trade-offs.
e. This indicator is based on academic notions (deductive) and supported by phrases derived from data (inductive). The word reinforce is used as an indicator, because it was literally used by the cabinet to emphasize the aspect of improvement.94
f. This indicator is primarily based on words and phrases derived from data (inductive). This word was very often used by the cabinet. They often argued that privacy interests were safeguarded in security measures. Thus, one was accompanied by the other.95
89 Fuchs, C. (2013). Privacy and Security in Europe. PACT. pp.7-8.
90 Solove, D. J. (2011). The all-or noting Fallacy. in Nothing to hide: The false tradeoff between privacy and
security. Yale University Press. pp.33-37.
91 Solove, D. J. (2011). The all-or noting Fallacy. in Nothing to hide: The false tradeoff between privacy and
security. Yale University Press. pp.33-37.
92 Tweede Kamer, vergaderjaar 2016–2017, 34 588, nr.3, p.5.
93 “Hierin herkent het kabinet de terechte maatschappelijke vraag naar een evenwicht tussen veiligheid en privacy”
In: Tweede Kamer, vergaderjaar 2013-14, 33820, nr. 2, p.1.
94 Tweede Kamer, 2017–18, 34588, nr. 69, p.4.
95 For example: “…de modernisering van de bijzondere bevoegdheden gepaard zou moeten gaan met de introductie
van een onafhankelijke (rechterlijke) toets voordat tot de uitoefening van deze bevoegdheden wordt overgegaan.” In: Tweede Kamer, vergaderjaar 2016–2017, 34 588, nr.3, p.50.
22 g. This indicator is based on academic notions (deductive) and supported by phrases derived from data (inductive). The word mutually was often indirectly used and is applicable to the previous explanation. Thus, it was argued that security powers were reinforced, and at the same time privacy interests were improved.96
h. This indicator is based on academic notions (deductive) and supported by phrases derived from data (inductive). These phrases underline the possibility that both interests can potentially go hand in hand. For example, the cabinet states that security and privacy are not conflicting interests.97
It becomes clear that some indicators derived from data correspond with the notions explained in the body of knowledge. As such, these two approaches complement each other.
3.4 Data collection
This study has an in-depth analysis of primary sources of the Dutch House of Representatives. The sources used vary from parliamentary debates to parliamentary questions and views of representatives towards the new act as well as letters from the cabinets. Thus, the analysed material is produced by officials. The evaluation of the Commissie-Dessens is the starting point for the data collection. This commission evaluated the Wiv 2002 and made a recommendation for adaption to the Ministry of the Interior and Kingdom Relations and the Ministry of Defence on the first of December 2013.98 The sources are analysed up to and including the implementation of the new act on the first of May 2018.99 The data collection is justified, because this period could give a comprehensive overview and understanding of the views from the representatives and the cabinet. This study is demarked as it is only focused on the discussion within the House of Representatives on the implementation of the new act. To this end, it is not necessary to examine all interactions between the government and the involved third parties. The ongoing public debate following the adoption is disregarded as it not part of the scope of analysis. By way of example, the (social) media debate is as a result not part of this research.
96 “…onder gelijktijdige versterking van de waarborgen verbonden aan de inzet van de bevoegdheid…” In: Tweede
Kamer, vergaderjaar 2016–2017, 34 588, nr.3, p.75.
97 Tweede Kamer, vergaderjaar 2014–2015, 33 820, nr.4, p.3.
98 Commissie-Dessens. (2013). Evaluatie Wet op de inlichtingen- en veiligheidsdiensten 2002: naar een nieuwe balans tussen bevoegdheden en waarborgen.
