Criminalisation of espionage updated for the modern age
Minister Yeşilgöz-Zegerius will today submit for consultation a legislative proposal to add a new provision to the Criminal Code. The aim of this provision is to enable a more effective approach against new methods of espionage. Currently, many espionage activities are already punishable under Dutch law. This includes classical methods of espionage, such as the violation of state and company secrets. Developments like the emergence of new and ever more assertive players on the world stage and the dawn of digital espionage have prompted a review of existing espionage countermeasures.
‘We found that the law as it currently stands offers insufficient scope to combat espionage activities that do not involve the violation of state or company secrets or damaging activities other than the leaking of information. Such activities include picking up and delivering parcels, shadowing individuals, committing sabotage or spreading disinformation. After all, these activities can also cause immense harm to key Dutch interests. A rapidly changing world in which state actors are continuously looking for new ways to obtain information requires swift action.’
the minister said.
Espionage activities on behalf of foreign governments
Once signed into law, the legislative proposal would criminalise espionage activities carried out on behalf of foreign governments that pose a threat to key Dutch interests, including national security and the safety of individuals. Such activities would become punishable by up to six years’ imprisonment. In addition, the new stipulation would criminalise individuals who instigate others to carry out such activities on behalf of a foreign government. As espionage is increasingly being committed in the digital realm, the punishment for a number of computer crimes would increase by a third under the proposal if committed on behalf of a foreign power.
‘The Netherlands is a highly advanced country with an open economy and society. On the one hand this makes us strong, but it also makes us an appealing target for foreign governments and companies. This is why we must protect the unique knowledge of our business sector, our educational institutions and our knowledge institutes. This is also true for the specific knowledge and technology of private sectors which are of vital importance, such as telecoms. Moreover, we must protect individuals who are targeted by foreign espionage activities. Eventually, this will contribute to the aim of this legislative proposal: improving national security.’
Another issue is that foreign powers are increasingly attempting to exert influence within communities in the Netherlands that originate from their countries. This is also referred to as ‘diaspora spying’. Diaspora spying activities include both the open and covert gathering of information and attempts to influence members of those communities in order to promote internal security interests. Equally, foreign powers have no qualms about mobilising the members of such communities to silence opponents and critics within those communities or to pressurise them into conformity by other means. The new law would criminalise such activities as well. The above goes to show that espionage activities cover a multitude of behaviours that could pose a threat to national security and the safety of individuals.
In a great many cases, however, contact, cooperation and the exchange of information with foreign governments is legal and should remain so. This is because the Netherlands is an open society in which contact with foreign governments, companies, scientists, journalists and private citizens is and should remain possible. By consequence, the only activities considered espionage are those carried out on behalf of foreign governments that cause harm to key Dutch interests, including national security and the safety of individuals, by individuals who are aware that such activities pose a threat to those interests and either intend to cause harm or do not care either way.
‘Obviously, the intention is not to criminalise activities carried out in the name of journalism, science and diplomacy or regular business activities. Generally speaking, such activities will remain legal. This is different if, for example, an individual carries out espionage activities under the guise of science. We have a duty to protect Dutch knowledge institutes against such practices. The aim of this legislative proposal is to safeguard Dutch interests at all times, including the interests of Dutch companies and knowledge institutes.’