Privacy advocate Harry Halpin told Decrypt that “politically motivated server seizures” set a “terrifying precedent.” And one legal expert questioned whether the Dutch considered their legal right to refuse.
Halpin, CEO of privacy infrastructure firm Nym, told Decrypt, argued that the targeting of Autistici/Inventati servers by the Trump administration was “due to their political beliefs,” adding that, “The fact that the Dutch authorities co-operated with them to shut down a server means that the Netherlands is nothing more than a colony of the United States.”
The U.S. designated Autistici/Inventati as a “Specially Designated Global Terrorist” in August, claiming that it operates the “digital infrastructure for violent Antifa cells and other far-left militants.”
The designation prevents U.S.-based people and organizations from doing business with them. In turn, Autistici/Inventati disbanded as its users and donors faced potential repercussions.
One legal expert said the designation has no standing in the Netherlands and that another legal power was exercised.
“An FBI agent in Amsterdam has roughly the powers of a tourist,” Yuriy Brisov, lawyer and partner at Digital & Analogue Partners, told Decrypt. “So states ask each other permission. For the United States and the EU states, the rulebook for asking is a Mutual Legal Assistance Treaty, or MLAT, signed in The Hague in 1981.”
Brisov explained that everything is done “under Dutch law, by Dutch officers, with Dutch powers,” but entirely at the request of the U.S. For that reason, he said, Dutch authorities seized the server and not the U.S.
Prosecutors operate on a “trust principle,” the legal expert told Decrypt, meaning they don’t assess whether the seizure is proportionate or whether the U.S. investigation actually needs the material.
However, Brisov said, the Dutch could choose to refuse the request if it “harms its essential interests, concerns a political offence, or amounts to double jeopardy.” Seizure is also only allowed if the alleged conduct is a crime in both countries carrying more than a year in prison.
It is important to note that designating a group as a Specially Designated Global Terrorist doesn’t require a conviction or a court to hear the case, Brisov added, and neither the Dutch government nor the European Union followed the U.S. designation.
“Here is the Dutch problem: Washington’s label underpins the request, and the Netherlands does not share it,” Brisov told Decrypt, questioning whether “anyone in The Hague asked the political-offence question” that Dutch law reserves for Minister of Justice and Security David van Weel personally. “Internet hosts are not normally liable for what their users do,” Brisov noted, adding that the rule is written into both U.S. law and EU law through the Digital Services Act.
Halpin told Decrypt that the request should have been scrutinized due to its political nature.
“Any country that believes in sovereignty should push back against politically motivated server seizures,” he said. “This shows that only a multi-jurisdictional setup with true decentralization, as attempted by many blockchain projects, is the only way to resist nation-state-level attacks on digital infrastructure.”