Groundbreaking information on SkyECC: the Netherlands asked the assistance of France

Court of appeal of Amsterdam

New information from the French investigation in SkyECC shows what many lawyers, especially from the Netherlands and Belgium, already suspect for over years now: the role of France was smaller than presumed and presented by the other JIT parties (Belgium and the Netherlands). Especially that last country was involved by contributing in technical and tactical assistance, as it now turns out. In particular one document is important, in which the French police states that the Dutch authorities wanted the assistance of France by tapping the servers of SkyECC.

The importance of this argument can’t be underestimated, especially for Dutch cases (but maybe also others), as this means - according to the Supreme Court of the Netherlands and according to international law - that the Dutch investigatory authorities should have asked for permission to a Dutch judge as well and/ or that the Dutch investigatory are even co-responsible for the wiretapping of the SkyECC-servers. It is to be believed that a Dutch judge wouldn’t have allowed such an investigation. In fact, half a year earlier, a Dutch investigation judge indeed refused the prosecution to do an unrestrained investigation against all SkyECC-users because of the lack of suspicion against all - on the contrary, it was known that SkyECC was used for legally privileged communication. The Dutch way of operating could and should therefore be regarded as circumvention of (inter)national law.

On top of that, the mere referral to the principle of mutual trust - basically: the “principle of non-inquiry” - cannot be upheld any longer in (Dutch) SkyECC-cases. After all, the “initiative” lay with the Dutch, as well as the final processing of the data, including decryption of the data and enriching the data with geolocation and connecting certain accounts to certain chats.

Some more publications on this topic and the possible effect on ongoing cases can be found here (Volkskrant) and here (NRC).