Law Library Stacks

Back to Foreign Intelligence Gathering Laws

Summary

Foreign intelligence gathering in the Netherlands is regulated chiefly by the Intelligence and Security Services Act 2002.  The Act governs both the General Intelligence and Security Service and the Military Intelligence and Security Service, and requires that these Services obtain ministerial permission to exercise most of their powers, such as the power to institute surveillance and wiretaps and use intelligence agents.

I.  Introduction

The General Intelligence and Security Service of the Netherlands (Algemene de inlichtingen- en veiligheidsdienst, AIVD) under the Ministry of Internal Affairs and Relations with the Realm is responsible for, among other tasks, investigating individuals and organizations, gathering international intelligence, and compiling risk and threat analyses.[1] According to its website, the AIVD seeks to identify risks and threats to Dutch national security by “conducting in-depth investigations to gather intelligence material,” which it then “enriches” and shares with various other agencies, in particular the police Regional Intelligence Divisions (RIDs).[2] The AIVD can ask RID personnel to gather intelligence material.[3] In addition to the police regional intelligence units, there is a National Criminal Intelligence Unit that is part of the International Police Intelligence Department (IPOL) under the National Police Services Agency.[4] IPOL is the intelligence service of the Dutch police; it “receives, processes and analyses information, adds knowledge, and makes it available again.”[5] 

Other intelligence services are the Military Intelligence and Security Service (Militarie Inlichtengen- en Veiligheidsdients, MIVD),[6] the Fiscal Intelligence and Investigation Service-Financial Control Service,[7] the National Signals Intelligence Organization,[8] the Inspectorate SZW,[9] and the National Coordinator for Security and Counterterrorism (for analysis of threats and coordination of counterterrorism activities).[10]

Reportedly the Joint Sigint Cyber Unit (JSCU) was to begin operations in 2014 as a joint effort launched by the AIVD and MIVD.  The new unit is to replace the National Signals Intelligence Organization, which had also combined staff from the AIVD and MIVD.[11]

The AIVD shares intelligence analyses with the secret EU Intelligence Analysis Centre (INTCEN), and INTCEN shares its analyses with the AIVD.[12]

Back to Top

II.  Legislative Framework

The Intelligence and Security Services Act 2002 governs the activities and powers of the AIVD and also the MIVD.[13] The Act includes provisions on transparency and accountability, measures that “are a direct product of the European Convention on Human Rights.”[14]

The AIVD has the authority, among other powers, to observe and follow people, use intelligence agents, and monitor and tap telecommunications.  It may use “special powers” (also referred to as “special intelligence resources”) only if “strictly necessary” to carry out the duties entrusted to it by law.[15] The special powers include surveillance,[16] conducting searches,[17] using intelligence agents,[18] opening mail “and other consignments” without sender or addressee consent,[19] and monitoring and tapping telecommunications.[20] Special powers cannot be used, however, for security screenings or “safeguarding vital sectors,” nor may any act “likely to seriously infringe personal privacy . . . be taken without the express prior permission of the Minister of the Interior.”[21] The exercise of a special power is generally allowed only if the relevant minister, or the relevant head of a service on the minister’s behalf, has given permission for it.[22]

One of the tasks of the AIVD is to conduct investigations regarding other countries on subjects designated by the Prime Minister, in accordance with the relevant ministers.[23] The AIVD is authorized to conduct investigations that involve other countries “regarding matters with military relevance that have been designated by the Prime Minister, Minister of General Affairs in accordance with the relevant Ministers.”[24] The AIVD and the MIVD may process the personal data of persons when this is necessary in the context of investigations concerning other countries;[25] tap, receive, record, and monitor conversations, telecommunication or date transfer by means of an automated network with ministerial permission (with certain exceptions);[26] and receive and record non-cable-bound telecommunications originating from or intended for other countries.[27] Both Services are authorized to notify “the appropriate intelligence and security services of other countries, and the appropriate international security, signals intelligence and intelligence bodies” regarding information processed by or on behalf of the Service.[28] 

Both the AIVD and MIVD must submit an annual report before May 1 every year.[29]  The Intelligence and Security Services Act 2002 also requires the AIVD to “notify anyone against whom it has used powers which infringe their constitutional right to privacy at home (Article 12) or secrecy of communications (Article 13).”[30] The AIVD must review whether such notification is possible five years after the use of the power in question has terminated, but it will not notify the persons in question if doing so would harm relations with other countries or reveal the sources or methods of the AIVD.[31]

Back to Top

III.  Oversight

An independent regulatory commission, comprised of three members appointed by the Crown at the Parliament’s recommendation, carries out retrospective monitoring of the AIVD in compliance with the Intelligence and Security Services Act 2002 and also the Security Screening Act.[32] “Subject to a legal obligation to confidentiality,” the commission “is entitled to inspect any information it wishes.”[33]  The commission also publishes an annual report.[34]

Back to Top

Prepared by Wendy Zeldin
Senior Legal Research Analyst
December 2014
 


[1] Tasks and Areas of Interest, AIVD, https://www.aivd.nl/english/aivd/tasks-and-areas/ (last visited Dec. 4, 2014).

[2] The AIVD’s Role in National Security, AIVD, https://www.aivd.nl/english/aivd/the-aivd-role/ (last visited Dec. 4, 2014).

[3] Id.

[4] Police and Safety Regions Dep’t, Ministry of the Interior and Kingdom Relations, Policing in the Netherlands 22 (Jan. 2009), http://www.interpol.int/content/download/11814/82014/version/1/file/POLICE %20BROCHURE.pdf.

[5] Id. at 31.

[6] Militarie Inlichtengen- en Veiligheidsdients, Ministerie van Defensie, http://www.defensie.nl/organisatie/ bestuursstaf/inhoud/eenheden/mivd (last visited Dec. 4, 2014).

[7] Fiscale Inlichtingen- en Opsporingsdienst - Economische Controledienst (FIOD), Sociale kaart, https://meeugv.socialekaartnederland.nl/organisaties/fiscale-inlichtingen-en-opsporingsdienst-economische-controledienst-utrecht (last visited Dec. 4, 2014).

[8] Q&A’s Nationale Sigint Organisatie, Rijksoverheid (Mar. 17, 2008), http://www.rijksoverheid.nl/nieuws/2008/ 03/17/q-a-s-nationale-sigint-organisatie.html; seeAna van Es, Jagen op terroristen vanuit de polder, de Volkskrant (June 23, 2012), http://www.volkskrant.nl/binnenland/jagen-op-terroristen-vanuit-de-polder~a3275554/.

[9] The Inspectorate SZW, instituted on January 1, 2012, combines “the organisations and activities of the former Labour Inspectorate, the Work and Income Inspectorate and the Social and Intelligence Investigation Service of the Ministry of Social Affairs and Employment.”  Special Investigation Departments, Research and Documentation Center, Ministry of Security and Justice, https://english.wodc.nl/publicaties/bronnengids/politie_opsporing/ bijzondere_opsporingsdiensten/ (last visited Dec. 4, 2014).

[10] Nationaal Coördinator Terrorismebestrijding en Veiligheid (NCTV); see National Coordinator for Security and Counterterrorism, Annual Plan NCTV 2014, at 3–5 (Jan. 27, 2014), http://english.nctv.nl/publications-products/brochures/ (scroll down page for hyperlink).

[11] Didier Bigo et al., Netherlands’ Surveillance: Justice, Freedom and Security in the EU, openDemocracy (May 14, 2014), https://www.opendemocracy.net/can-europe-make-it/didier-bigo-sergio-carrera-nicholas-hernanz-julien-jeandesboz-joanna-parkin-fra-4.  According to this news report, “the JSCU is expected to centralize all Signals and Cyber surveillance in the Netherlands and will have a staff of 350. . . . The signals location in Burum and the analysis location in Eibergen, currently operated by the NSO, will stay active.”  Id.

[12] Matthijs R. Koot, Dutch Govt Response to Parliamentary Questions About EU IntCen, Matthijs R. Koot’s Notebook (Jan. 10, 2014), https://blog.cyberwar.nl/2014/01/dutch-govt-response-to-parliamentary-questions-about-eu-intcen/.  This blog post is a translation of responses by Dutch Cabinet members to parliamentary questions about INTCEN.

[13] The Intelligence and Security Services Act 2002, AIVD, https://www.aivd.nl/english/aivd/the-intelligence-and/#Documents (last visited Dec. 4, 2014; scroll to bottom of page for link to English text of Act of 7 February 2002 [in force on May 29, 2002], Providing for Rules Relating to the Intelligence and Security Services and Amendment of Several Acts (Intelligence and Security Services Act 2002), as amended by the Act of 2 November 2006 (Bulletin of Acts, Orders and Decrees 2006, 574).  For the Dutch text of the Act, see http://wetten.overheid.nl/ BWBR0013409/geldigheidsdatum_14-09-2014.

[14] The Intelligence and Security Services Act 2002, supra note 13.

[15] Id.

[16] Id.; Intelligence and Security Services Act 2002, art. 20.

[17] The Intelligence and Security Services Act 2002, supra note 13; Intelligence and Security Services Act 2002, art. 22.

[18] The Intelligence and Security Services Act 2002, supra note 13; Intelligence and Security Services Act 2002, art. 21.

[19] The Intelligence and Security Services Act 2002, supra note 13; Intelligence and Security Services Act 2002, art. 23.

[20] The Intelligence and Security Services Act 2002, supra note 13; Intelligence and Security Services Act 2002, arts. 24–27.  For AIVD’s digital intelligence activities, see General Intelligence and Security Service, Annual Report 2013, at 18 (Apr. 23, 2014), https://www.aivd.nl/english/general/search/@3096/annual-report-2013/.

[21] The Intelligence and Security Services Act 2002, supra note 13.

[22] Intelligence and Security Services Act 2002, art. 19 ¶ 1.

[23] Id. art. 6 ¶ 2(d).

[24] Id. art. 7 ¶ 2(e).

[25] Id. arts. 13 ¶¶ 1(c) & 2(c).

[26] Id. art. 25 ¶¶ 3 & 8.

[27] Id. art. 26 ¶ 1.

[28] Id. art. 36 ¶ 1(c).

[29] The Intelligence and Security Services Act 2002, supra note 13; Intelligence and Security Services Act 2002, art. 8.

[30] The Intelligence and Security Services Act 2002, supra note 13.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

Back to Top

Last Updated: 06/09/2015