In early November 2018, in response to a signal from the Netherlands Bar Association (NOvA), it emerged that the system that enables the Judicial Institutions Department (DJI) to record telephone calls from detainees, "Telefonie voor Justitiabelen" (hereafter: TvJ) did not work correctly due to a programming error. I informed your Chamber about this on November 7, 2018. [1] As a result of this programming error, conversations between detainees and lawyers were mistakenly recorded. This is obviously unacceptable in the context of a well-functioning rule of law. Therefore, after contacting the NOvA about this, I have instructed them - in consultation with the NOvA - to set up an independent commission to investigate the extent, duration and consequences of the programming error that came to light. This investigation was recently completed. I hereby transmit to you the investigation report.
In the following, I address the committee's conclusions and recommendations. Before I get to that, I would like to briefly explain the TvJ system.
The TvJ system enables DJI to allow detainees to have conversations with the outside world. If there is reason to do so, conversations may be listened to, recorded and/or tapped by authorized staff members - after permission has been granted by the branch director of the PI in question - in order to pick up signals about continued criminal conduct (VCHD), unwanted contact with victims and/or next of kin, or other undesirable acts and activities. If the provisions of the Code of Criminal Procedure are complied with, recorded conversations may additionally be transferred to the police within the framework of investigation and prosecution, pursuant to a request from the openbaar ministerie 's Office (OM).
To prevent conversations between detainees and lawyers from being recorded, TvJ is equipped with a number recognition system. This system was created in consultation with the NOvA and works as follows. Lawyers voluntarily provide their telephone number, or a change thereof, to the NOvA via a website. The NOvA places these numbers on a single list and sends it to TvJ each night, updated and coded, replacing the previous day's list. Calls made to these numbers can no longer be listened in or recorded in real time. In other words, listening in or recording the call is prevented as soon as a registered attorney's phone number is recognized.
The use of TvJ revealed two programming errors. It was found that calls between inmates and lawyers were not prevented from being recorded if the lawyer's phone number appeared more than once on the NOvA's phone list. Furthermore, it turned out that the prevention of recording did not work if the daily list was delivered from the NOvA with a delay of several hours. Indeed, in such a case, the list of telephone numbers from the previous day expired. Both programming errors were corrected shortly after discovery and investigated by the committee. [2]
The committee answers the main question as follows.
Scope and duration
The programming errors existed since TvJ's inception in 2013. As a result of these errors, 3,313 calls were erroneously recorded. It is relevant here that the committee's factual data investigation into the scope of this issue was limited by the legal eight-month retention period of the phone calls. Still, to get a sense of the total magnitude of programming errors since the inception of TvJ, the committee extrapolated the number of calls actually recorded in error. Based on this, the committee suspects that approximately 25,000 conversations between detainees and lawyers have been recorded erroneously since the system's inception in 2013. [3]
Consequences
There was no evidence that the actual recorded conversations were overheard by DJI. Four of the 3,313 conversations were transferred to the police pursuant to a prosecution order. None were listened to by the police. [4]
Also with regard to this part of the main question, the committee extrapolated the actual data in order to get an impression of the consequences of programming errors since the start of TvJ. In doing so, the committee applied the percentage of listened-in and listened-out conversations calculated by DJI for the period 1-11-2018 through 25-07-2019, as well as the percentage of conversations transferred pursuant to a requisition, to the number of 25,000 presumably erroneously recorded conversations. This leads the committee to state that presumably 75 erroneously recorded conversations were listened to by DJI and 200 erroneously recorded conversations were transferred to the police on the basis of a requisition from the prosecution.
The main question of the study was accompanied by some sub-questions. In addition, the committee saw reason to ask some additional questions of its own. Based on the total of questions, the committee draws the following conclusions, among others.
An integrated (chain) approach to the number recognition system is lacking.
The telephone list provided by the NOvA for the purpose of the number recognition system is not current or incomplete.
The policy around recording and listening to telephone conversations within PIs does not meet the requirements of proportionality and subsidiarity.
There are no convincing arguments for the eight-month retention period for recorded telephone conversations.
The principle of personalized calling is structurally problematic.
Following the above conclusions, the committee makes the following recommendations - in summary.
1. Adopt an integral (chain) approach and ensure a complete and correct number list.
The committee states that an integral (chain) approach to the matter is lacking. For example, risks that may arise at the various links in the chain are not being jointly identified. Also missing until recently were essential tests that periodically check whether the telephone numbers of the calls recorded correspond to numbers on the NOvA's list. Furthermore, the committee states that even now, in more than occasional cases, calls to lawyers are recorded by the telephone system. According to the committee, this is most likely caused by the fact that the list of lawyers' telephone numbers is not current or incomplete. On this basis, the committee recommends adopting an integral (chain) approach and ensuring a complete and correct number list.
2. Adjust the policy on recording conversations.
With regard to the policy on the recording of conversations, the committee first recommends adjusting this policy in the context of the necessary proportionality and subsidiarity. Reducing the number of recorded conversations will also reduce the likelihood and impact of errors or data leaks, according to the committee. Second, the committee recommends that the (amended) DJI policy be put in writing.
3. Reconsider the retention period for recorded conversations.
The committee indicates that it cannot answer the question of whether the eight-month retention period is justified. The committee sees this as reason to recommend reconsideration of the retention period for recorded conversations and in this regard advocates shortening the period. The invasion of privacy caused by the recording of conversations and the impact of errors are thereby reduced, the committee says. In addition, the committee recommends taking measures to ensure compliance with the applicable retention period.
4. Take measures to make phone calls more personal.
To establish a phone call, a detainee must enter a registration number and PIN into the phone facility. The committee has concluded that it happens that a detainee provides this information to another detainee, making it uncertain that the detainee who is actually calling is also the one who would be calling according to the system. The committee therefore recommends that measures be taken to make phone calls more personal.
In the following, I will discuss my response to these recommendations.
Re 1. Adopt an integral (chain) approach and ensure a complete and correct number list.
I agree with the Committee that good cooperation between DJI and the NOvA is indispensable in guaranteeing the confidentiality of telephone conversations between detainees and lawyers. In this I find DJI and the NOvA on my side. The investigation report shows that both DJI and the NOvA have made efforts to prevent conversations between detainees and their lawyers from being recorded and that the programming errors were simply not foreseen by the parties involved. However, the report also shows room to improve the chain approach to detainee interviews and the cooperative relationship between DJI and the NOvA. This is also evident in the handling of two recent disruptions in the facility that allows the police to receive and listen in on detainees' phone calls. To this end, both DJI and the NOvA are very willing and initial steps have already been taken in this regard. In this regard, the following was agreed upon.
Stronger efforts are being made to conduct audits and hold operational and strategic consultations.
A reporting protocol will be established for those cases in which DJI employees - despite the application of the number recognition system - would stumble upon a conversation between a detainee and lawyer when listening in on calls.
The covenant in force between DJI and the NOvA will be reviewed and adjusted where necessary, for example, based on the above-mentioned reporting protocol.
A chain analysis will be conducted, including consideration of the possible dangers of hacking and phishing of the telephony system by malicious parties.
Furthermore, future adaptations of TvJ will pay attention to the contact between users and programmers. The committee's recommendation regarding the chain approach is therefore fully adopted.
With regard to the recommendation to improve the telephone directory, which I fully support, steps have also already been taken. For example, during the investigation, the NOvA already initiated an introduction of a mandatory annual check of the accuracy of the telephone numbers to be carried out by the lawyers themselves. In addition, the NOvA, while paying attention to the proportionality of passing on all telephone numbers within the framework of privacy, is considering whether an amendment of the regulations for the benefit of the TvJ can lead to a mandatory provision of telephone numbers by lawyers. Of course the chain approach must be in order.
Re 2. Adjust the policy on recording conversations.
Regarding the first recommendation under this point, that the standard recording of conversations in PIs should be limited in the context of the necessary proportionality and subsidiarity, the following is relevant.
Pursuant to article 39, second paragraph, in conjunction with article 36, fourth paragraph, of the Penitentiary Principles Act (Pbw), the establishment director may determine that for the purpose of (a) the maintenance of order or security in the institution, (b) the protection of public order or national security, (c) the prevention or detection of criminal offenses, and (d) the protection of victims of or otherwise involved in crimes, telephone conversations are recorded.
The current policy surrounding the monitoring of telephone calls is based on these legal provisions and on the rulings of the Council for the Administration of Criminal Justice and Protection of Juveniles cited by the Committee in its study. [5] Here, the requirements of proportionality and subsidiarity have been taken into account. This was also reported to your Chamber in 2016. [6] In line with this policy, as part of the tightening of supervision of detainees' contacts with the outside world, DJI drew up a manual in 2018 that sets out the requirements and possibilities with regard to the supervision of external contacts of detainees. [7]
In this connection I would like to emphasize the difference between the recording of conversations and the actual eavesdropping or listening in on conversations, which is only done if the branch director has given permission on the basis of the applicable regulations. [8] It is relevant here that the Committee also mentions in this connection the fact that the infringement on the privacy of detainees is less in the case of mere recording than in the case of listening in. As I informed your Chamber in a letter dated July 11 last year, it may, incidentally, be necessary for the protection of society to randomly listen in on detainees' conversations. [9] In this connection, work is currently underway on adapting the relevant regulations in this regard.
With respect to the aforementioned proportionality and subsidiarity, I note the following. The policy surrounding the recording of telephone conversations takes into account the fact that detainees with a high security risk in some cases have other detainees within the PI communicate messages by telephone or that detainees make calls with the log-in data of other detainees. This means that for the sake of security in the facility and the prevention of VCHD, it is not always sufficient to limit the recording of telephone conversations to the detainee with the high security risk. It can be assumed that security-sensitive information is shared precisely at the times when other detainees are deployed. As a result, in PIs with security level 3 and above, where such high security risk detainees reside, telephone calls from the entire department or the entire PI are recorded by default.
Given the above, I am convinced that in the context of protecting society, it is and remains necessary to be able to record conversations of detainees by default. I therefore see no reason to adjust the policy on this point, so I do not adopt the first part of this recommendation. I would like to mention here that I take the committee's point about reducing the chance and impact of errors or data leaks very seriously. Action has already been taken on this point. In fact, an additional check on the presence of conversations between lawyers and detainees was introduced shortly after the second programming error manifested itself. Every night it is checked to see if conversations recorded the previous day were on the NOvA phone list. Since this additional check was instituted, no conversations between attorneys and inmates have been found during the daily check.
An adjustment of the standard recording of telephone conversations, for that matter, would represent a step backward in terms of the space offered in detention for maintaining contact with the outside world. Here it is important to note - as already noted in this letter - that in some PIs it is and remains necessary to be able to monitor telephone conversations by default. If this cannot be done by means of recording these conversations, it is necessary to return to the legal minimum of telephone conversations ex Article 39, paragraph 1, of the Pbw. Under this, a detainee may make telephone calls for only ten minutes per week and in a public place. This, whereas with TvJ it is precisely a situation where the detainee himself has more control over when phone calls are made and how long they last.
Regarding the second part of this recommendation, the following is also important. The committee's report has shown that the aforementioned work instructions based on the handbook and compliance with them require attention at certain points. These work instructions also need to be supplemented, for example by adding the reporting procedure mentioned above. DJI has already taken this point in hand. I therefore adopt this part of the recommendation.
Re 3. Reconsider the retention period of recorded conversations.
Regarding the recommendation on the retention period, I refer first to the introduction of an additional check on the presence of conversations between lawyers and detainees in the recorded conversations. This additional check will reduce the presence of the erroneously recorded conversations cited by the committee in the group of retained conversations and its impact. Separately, I see reason in the committee's research to commission a short-term exploration of the retention period to be used. This leads to the conclusion that I adopt the committee's third recommendation.
Re 4. Take measures to make phone calls more personal.
That some detainees exchange their data, I have already mentioned in this letter. Of course, attention is also given to preventing this situation within the PIs. Unlike the committee, however, I am of the opinion that the problem surrounding the exchange of log-in data and thus calling with someone else's account cannot easily be solved by deploying log-in options such as voice or facial recognition that are financially feasible. Indeed, even with these measures, it is possible for an inmate to allow another inmate to make contact with the telephony facility and then take over the call himself. Therefore, I do not adopt the committee's last recommendation. Of course, DJI does keep track of developments in this area to see whether adjustments to the notification system are appropriate at a later date.
As I have stated earlier in this letter, it is important to ensure the confidentiality of conversations between lawyers and detainees. Thanks to the committee's investigative report, I and the NOvA believe that this confidentiality is receiving the attention it deserves. I am therefore grateful to all parties, especially the committee, for their efforts during the investigation. I trust that by taking up the above-mentioned actions, a system will be in place that forms the basis for a good balance between on the one hand giving detainees room to maintain (confidential) contacts with the outside world and on the other hand preventing and detecting VCHD and protecting society.
Law Minister,
Sander Dekker
View the report: Report of the Committee on Telephony for Justices
[1] Parliamentary Papers II, 2018-2019, 24587, no. 739
[2] The second programming error emerged during the study.
[3] By comparison, 7,334,305 calls were made to TvJ from March through September 2018.
[4] The police work with a system that destroys any conversations with lawyers before the conversations can be tapped by the police. It is relevant here that the police's system is populated with a list where lawyers' phone numbers are automatically placed, creating a more comprehensive list than the one provided to TvJ.
[5] See, for example, RSJ March 14, 2014, case number 14/794/GA.
[6] Parliamentary Papers II, 2015/16, 24 587, no. 658.
[7] Parliamentary Papers II, 2017/18, 24 587, no. 722.
[8] The committee's research shows that 0.3% of recorded conversations are listened in or out.
[9] Parliamentary Papers II, 2018/19, 24 587, no. 748.
