Legislation to be broadened to make more forms of espionage a criminal offence
On 18 March the Dutch Senate approved a law criminalising more forms of espionage, such as digital and diaspora espionage. As a result a new criminal provision has been added to the Dutch Criminal Code. The law is intended to protect national security, public safety, critical infrastructure and high-value technologies more effectively.
As Minister of Justice and Security David van Weel explains, “Espionage is, unfortunately, a daily reality. As a nation we must strengthen our resilience against attacks and threats from abroad. This law enhances our ability to protect the Netherlands from emerging forms of espionage. It also sends an important message that we will not accept it and that espionage activities will be punished. In that respect I am happy that the law will come into force before the NATO summit in June this year."
More forms of espionage to be made a criminal offence
Legislation already exists which makes classical espionage, such as sharing state secrets, a criminal offence. The problem is that espionage is changing in terms of its manifestations and use. The new law now also makes it a criminal offence for someone to leak sensitive information which is not a state secret, or if someone engages in activities on behalf of a foreign government which seriously harm Dutch interests. Examples of such activities include sharing sensitive business information that another country could misuse, or transferring personal data to foreign governments.
People who engage in espionage activities for a foreign government could face a maximum prison sentence of eight years. In very serious situations the maximum prison term is 12 years. This would apply, for example, if the espionage activities result in someone's death. Due to the increasing prevalence of digital espionage, people who commit computer-related offences may also face harsher penalties if they do so on behalf of a foreign government. The maximum punishment is also to be increased for a number of other offences associated with espionage activities committed for foreign governments, such as bribery.
Interested in more than state secrets
Although the focus of perpetrators of espionage is still on unearthing state secrets, foreign governments are also interested in sensitive information about a particular economic sector which is not a state secret, or communications relating to political decision-making. Such information can be used to influence political processes, weaken the Dutch economy, or play allies off against each other. Espionage may also involve activities other than sharing information, such as stealing high-tech know-how, sabotaging vital infrastructure, exerting an influence on political decision-making, or endangering Dutch citizens with a migration background.
Safeguards
The Netherlands is an open society in which contact with foreign governments, companies and scientists and between citizens is and should remain possible. Of course, contact, collaborating or exchanging information with foreign governments is not necessarily a criminal offence. Activities can only be regarded as espionage if they are performed on behalf of foreign governments in order to harm key Dutch interests and if the perpetrators are aware that they are compromising those interests and do so intentionally, or are prepared to go along with it.