The Dutch (concept) bill to fight computer crime is controversial due to the proposed new hacking capabilities for law enforcement authorities. However, the proposed “Notice and Take Down” (NTD)-order is another aspect of the bill that deserves our attention.

Notice and Take Down

Notice and Take Down is a concept in which companies or persons are requested to make illegal online content unavailable. In the Netherlands, self-regulation led to a code of conduct (.pdf) regarding “Notice and Take Down” for public telecommunication providers. Persons, companies and law enforcement officials can request a company to make online content unavailable when content on a particular website is clearly illegal in nature. For example, if child pornography is made available on a website, an administrator of a website can be requested to remove it as soon as possible.

Enforceability problems

Notice and Take Down is not an obligation for Internet providers. The Dutch Minister of Safety and Justice wants to change this by providing law enforcement authorities with the instrument of a “Notice and Take Down-order” (see the newly proposed art. 125p of the Dutch Code of Criminal Procedure). With the consent of a magistrate judge, a public prosecutor could order any “electronic communication provider” (ECP) or person who has the particular computer (usually a server) at his disposal to “take all reasonable measures” to make the illegal content unavailable in order to end a crime or prevent new crimes from occurring (the order is meant for all crimes in Dutch law).

When the company or person involved does not comply, they could be sanctioned with a fine or even prosecuted for non-compliance. Curiously, the language of the proposed measure in art. 126p implies that intermediaries are “suspects” who have a right to an attorney during a hearing about the measure. The intermediaries involved can go to court and protest to a judge if they disagree with the order. The order is meant as a temporary measure which is judged on again at the end of a criminal trial. Personally, I hope the NTD-order is indeed always accompanied with a criminal trial and not simply used as an instrument to get rid of information law enforcement authorities believe to be illegal.

The order is only meant to be used when a NTD-request is not executed voluntarily, for example in hate speech or slander cases in which the intermediary and public prosecutor disagree about whether the content is illegal. In my view, the proposed NTD-order is a far-reaching and - in some cases - blunt instrument, which may prove only partially effective. Sometimes, many websites are hosted on 1 web server. Taking down a web server may therefore result making many more (legal) websites inaccessible.

From Notice and Take Down to Internet filters

Just like what happened to the website of The Pirate Bay in the Netherlands, it seems that Internet service providers (ISPs) can also be ordered to filter out a specific website under the proposed NTD- order. Although the explanatory report of the bill does not explicitly state it, a similar concept bill with an NTD-order in 2010 (see p. 23-24 (in Dutch)), did state that: “blocking or filtering” of an IP address are among the “reasonable measures” that ECPs should take to end crimes or prevent new crimes from occurring. In that case, ISPs - which are considered a ECPs - may be obliged to filter out an entire IP address belonging to a web server and take down the websites with it. Such filters are easy to circumvent by use of proxy and VPN servers. The Pirate Bay for example is still available. Thus, in my opinion, more clarity about the “reasonable measures” that intermediaries are supposed to take is desirable. In the meantime Dutch web hosting companies and ISPs worry about the costs of the proposed NTD-order and their competitive positions in the industry.

Conclusion

The proposed Notice and Take Down-order is meant for criminal cases in which a person or company can take down an illegal website, but fails to do so voluntarily. However, the measure contradicts the right to obtain information as part of the right to free speech. The measure may even result in a filter obligation of specific websites for ISPs. Our Parliamentary Members should think and debate thoroughly about the blocking and filtering measures before making them permissable as an instrument for law enforcement authorities.