XS4ALL sues Dutch State for investments in wiretapping

By EDRi · March 10, 2005

The Dutch Internet provider XS4ALL has launched a court case against the Dutch State to recuperate the investments it has done to comply with wiretapping legislation. XS4ALL says it has invested half a million euro since 2001 to enable law enforcement authorities to place a wiretap on a specific customer. The Dutch State only reimburses the administrative costs of executing a specific wiretapping order, but none of the costs of purchasing and maintaining the necessary equipment.

In the 49 page subpoena XS4ALL states this cost shift is unfair from the principle of equal discharge of public burdens, unjustified under the European Authorisation Directive and an obstruction to the freedom of speech. Besides, in many other countries providers do get a full reimbursement for wiretapping, such as in Austria (after ISPs had launched a procedure at the Constitutional Court), Italy, Finland, France and the UK. Also in the United States providers are also fully reimbursed for wiretapping costs, creating a serious competition problem for Dutch providers.

A spokeswoman from the provider said thanks to the cost shift, the State does not feel any need to do an analysis of profits and losses and does not question if the results of wiretapping are worth the investments.

By instigating the court case, XS4ALL explicitly wants to set a precedent to establish who pays for law enforcement – government or industry. Justice minister Donner has already told the Dutch parliament that he is not in favour of any cost reimbursement for providers if they will be obliged to store all the traffic data about their customers for a period of 1 to 3 years. The European Council of Justice and Home Affairs will probably finalise the proposal for a framework decision on mandatory data retention in their meeting of 14 April 2005.

Press release XS4ALL (07.03.2005)

Complete subpoena in English (10.03.2005)

ISP sues Dutch gov for snooping costs (08.03.2005)