In June, AKD announced the publication of a blog series on online monitoring by municipalities. In part 1 discussed the use of online monitoring within the public order domain. In this part of the blog series, the focus is on the use of fake accounts by municipalities in the detection of welfare fraud. A fake account is a profile created on a social media page such as Facebook or Instagram to gain insight into Internet resources not accessible to everyone. The law does not appear to (explicitly) exclude detection of welfare fraud through the use of fake accounts. In this blog, AKD explains this and addresses questions such as what municipalities use fake accounts for, what the legal basis for this government action is, and whether the evidence obtained with fake accounts can be used as a basis for further decision-making.
From a study titled 'Black Box of municipal online monitoring' by the Cybersafety Research Group of the Thorbecke Academy of NHL Stenden, it follows that 95% of municipalities are doing online monitoring. The research also shows that many municipalities are unclear as to what regulations they are bound by when deploying fake accounts. Questions have been asked by council members in many municipalities to the municipal executive about this practice. Although a number of municipalities indicate in their answers that they will stop using fake accounts until there is national legislation in this area, there are other municipalities that deliberately continue with this. In this blog, therefore, we think it would be good to dwell on the legal obstacles that municipalities must consider when monitoring through fake accounts. We will save the privacy aspects for Part 3 of the blog series.
In the Dutch legal system, there is a principle that dictates that every government action must be based on a legal basis. We call this the principle of legality. Citizens must be able to know what to expect from the government. The democratically elected legislature therefore provides a basis for government action in legislation.
The answer to the question of whether surveillance may be conducted through fake accounts is thus relevant whether there is a legal basis for doing so. Also relevant is whether the evidence obtained from the fake account can be used as evidence for further decision-making. We discuss the free evidence doctrine in administrative law later in this blog.
One area in which fake accounts are widely used is in the detection of social assistance fraud. After all, a social security beneficiary is obliged to provide the municipality with information (Article 17 of the Participation Act). The college, in turn, is authorized to investigate the accuracy and completeness of the information provided and other information necessary for the granting or continuation of assistance (Article 53a, sixth paragraph, Participation Act). If the person entitled to assistance does not provide the requested information, or does not provide it on time or in full, this has consequences for the right to assistance. The College may then suspend the right to assistance (Article 54, first paragraph, Participation Act). If the person entitled to assistance does not subsequently provide the requested information, the college may withdraw the decision to grant the assistance (Article 54, fourth paragraph, Participation Act). In that case there is a violation of the obligation to provide information. Violation of the information provides an independent basis for review or withdrawal of the decision to grant assistance (Article 54, third paragraph, Participation Act). In addition, violation of the obligation to provide information results in the College (1) having to reclaim the assistance already paid (Section 58 of the Participation Act) and (2) having to impose an administrative fine of up to the amount of the violation (Section 18a of the Participation Act).
The question is whether these provisions of the Participation Act provide a sufficient basis for conducting surveillance through fake accounts. What is striking is that the Participation Act was written primarily for conducting supervision in the offline world. Thus, the legislator explains that the factual situation is decisive for the right to assistance and that this situation should be investigated by the municipality, for example on the basis of documentary evidence. An assistance recipient can also be forced to cooperate in a home visit.
Yet case law does not seem to prohibit digital or anonymous monitoring under the Participation Act either. For example, it follows from case law that an anonymous report can sometimes give rise to further investigation (ECLI:NL:CRVB:2020:753). And recently, the college of the municipality of Almelo based a decision to withdraw and reclaim assistance on a report based on information found through Facebook and Youtube (ECLI:NL:CRVB:2021:936). Although the Central Appeals Council did not seem to rule out evidence obtained through the Internet, the decision based on it did not reach the finish line. The welfare recipient in this case had succeeded in disproving the evidence.
In view of the foregoing, the Participation Act does not appear to (explicitly) preclude investigation through fake accounts for the purpose of preventing welfare fraud.
Supervision of compliance with the Participation Act is entrusted to officials designated by decision of the college (Article 76a Participation Act). Although the VNG manual for Internet research Participation Act (2021) indicates that it should be possible for any official within the municipality to monitor the obligation to provide information under Section 53a of the Participation Act, we infer from a strict reading of Section 76a of the Participation Act that the legislator intended that only the supervisors appointed by decree are strictly speaking authorized to supervise the Participation Act. This applies to the supervision of compliance with the entire Participation Act. To the extent that an official who has not been designated as a supervisor searches the Internet via Google or social media accounts for possible indications of social assistance fraud, that does not seem compatible with this statutory provision.
In exercising their powers, supervisors must comply with the obligations of the Awb, including the provisions on compliance monitoring in Title 5.2. It follows, for example, that they must carry proof of identity when carrying out their duties and show it when asked (Article 5:12 Awb). One may wonder how the use of fake accounts, where the awareness of the supervisor's identity is not disclosed, relates to the intention of that statutory provision that the supervisor's identity must be known. Although a case about conducting supervision through fake accounts has not yet arisen in case law, it seems that this provision need not prevent it. After all, it does not follow from Article 5:12 Awb that a supervisor must be able to show identification immediately (without request) (ECLI:NL:CBB:2013:166). Anonymous supervision therefore does not seem impermissible by definition.
Municipalities may wish to use the evidence obtained from fake accounts as the basis for a decision to withdraw or reclaim assistance or to impose an administrative fine. To answer the question of whether this is permissible, it is important that in administrative law - unlike in criminal law - a free theory of evidence applies. For the imposition of a remedial sanction, it is sufficient that the government makes a violation plausible. Withdrawing and reclaiming assistance and violating the obligation to provide information is considered such a remedial sanction (ECLI:NL:CRVB:2019:3743).
Evidence for such a decision may be based on a report from the supervisor in question. If the evidence is contained in a report made on oath of office or oath of office, then the administrative body may in principle assume the accuracy of the observation (ECLI:NL:CRVB:2020:423). If the report was not made under oath or promise of office, then the reports have less probative value, but are not meaningless. In administrative law, evidence is only impermissible if it has been obtained in a way that is so contrary to what may be expected of a properly acting government that such use must be deemed inadmissible under all circumstances (ECLI:NL:CRVB:2016:3479). This goes so far that an administrative body may even use evidence that has been established in criminal proceedings to have been unlawfully obtained (ECLI:NL:CRVB:2018:2913). The Administrative Law Division of the Raad van State takes the same line in its case law, which it recently confirmed (ECLI:NL:RVS:2021:1758).
When imposing a sanction of a punitive nature (the punitive sanctions), the requirements are stricter. Heavier requirements are imposed on the evidence and the motivation of the sanction decision (ECLI:NL:CRVB:2021:1476). The administrative fine is a punitive sanction, so the heavier requirements apply to it.
Given the above, it seems that evidence obtained by means of a fake account is more likely to be accepted by the administrative judge in the case of remedial sanctions (such as the withdrawal of the right to social assistance and recovery of assistance already paid) than in the case of punitive sanctions (such as the administrative fine). Despite the fact that a suspicion of fraud or abuse is not a legal condition for exercising control powers under the Participation Act, we can imagine that, in view of proportionality, subsidiarity and proportionality, the administrative judge will only consider internet research permissible in the case of (demonstrable) indications of abuse or fraud.
