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Netherlands: Tax Investigators to Use IMSI Catchers to Track Smartphones, Without Advance Police Permission

(Aug. 25, 2015) The Dutch Minister of Economic Affairs, Henk Kamp, announced on August 17, 2015, that the Fiscal Intelligence and Investigation Service (Fiscale inlichtingen- en opsporingsdienst, FIOD), a special investigatory unit under the country’s Tax and Customs Administration, will have the authority “to track and tap smartphones and tablets, including pre-paid … .” (Tax Investigators to Track and Tap Smartphones, DUTCH NEWS (Aug. 17, 2015); The FIOD-ECD (Feb. 10, 2012), International Association of Anti-Corruption Authorities website; FIOD, ALACRA (last visited Aug. 21, 2015).) The FIOD contends that it needs this smartphone and tablet tracking capability to better combat organized crime, fraud, and money laundering. Previously, it had to seek permission from the national police on a case-by-case basis in order to track smartphones. (Tax Investigators to Track and Tap Smartphones, supra.) The Minister did not indicate the statutory basis for the new power.

To carry out the tracking task, the FIOD will use IMSI catchers, which are devices “used in mobile networks to identify and eavesdrop on phones.” (Adrian Dabrowski et al., IMSI-Catch Me If You Can: IMSI-Catcher-Catchers, Annual Computer Security Applications Conference (ACSAC), 2014, SBA Research website; Tax Investigators to Track and Tap Smartphones, supra.) After an IMSI catcher makes contact with a phone, the phone sends “a personal IMSI code to the antenna with which the phone can be tracked,” which then makes it possible for the investigator “to listen to telephone conversations and to see text messages and internet use.” (Tax Investigators to Track and Tap Smartphones, supra.)

Kamp stated that Dutch citizens’ privacy will not be affected by the authority given to FIOD to use IMSI catchers; in his view, “[t]he expected consequences for citizens, companies and the environment are zero because the change only slightly enlarges the circle of those authorised to use the technology” without police permission. (Id.) That circle includes the Dutch General Intelligence and Security Service (AIVD) and its military counterpart, the Military Intelligence and Security Service (MIVD). (Id.; About the AIVD (last visited Aug. 21, 2015); Militaire Inlichtingen- en Veiligheidsdienst, Ministry of Defense website (last visited Aug. 21, 2015).)