The Law of 30 November 1998 Organizing the Intelligence and Security Services, as most recently amended in April 2016, establishes the general legislative framework within which Belgium’s intelligence agencies operate.
The Law of 30 November 1998 divides intelligence-gathering methods into three categories: “ordinary methods,” “specific methods” and “exceptional methods.” Ordinary methods tend to have the least impact on citizens’ privacy and may generally be used without authorization. If ordinary methods are insufficient, intelligence services may employ specific methods, which involve more extensive encroachments into privacy. Finally, exceptional methods, which are the most intrusive, may only be used to counter a grave threat. Attorneys, medical doctors, and journalists benefit from additional legal protections against the use of specific methods and exceptional methods.
The interception of communications falls into the category of exceptional methods. Such measures must be proportional to the seriousness of the threat and must be authorized by a special oversight commission. Service providers and network operators are required to cooperate with the intelligence agencies for the interception of communications. While the refusal to cooperate is punishable by fine, those who cooperate actively with the operation are offered monetary compensation. It appears that the service providers and network operators may not use or make available any form of encryption that they are not able to decrypt themselves.
Oversight of intelligence gathering is principally provided by an independent administrative commission. In addition to this administrative commission, the Belgian Parliament also oversees intelligence agencies through its Standing Intelligence Agencies Review Committee, which monitors and evaluates the legality of the methods used as well as their effectiveness.
Belgium has two main intelligence services: the Sûreté de l’Etat (State Security) and the Service general du renseignement et de la sécurité (SGRS, General Intelligence and Security Service). The Sûreté de l’Etat is a civilian intelligence and security service that falls under the authority of the Minister of Justice, although it sometimes also works for the Minister of the Interior. By contrast, the SGRS focuses on military intelligence, and falls under the authority of the Minister of Defense.
In addition, an interagency body was created in 2006 to assess the threat posed by terrorists and extremists against Belgium. This body, called the Organe de coordination pour l’analyse de la menace (OCAM, Coordination Unit for Threat Assessment), is placed under the joint authority of the Minister of the Interior and the Minister of Justice, and relies on information provided to it by the Sûreté de l’Etat, the SGRS, local and federal police, customs and tax authorities, the federal service for foreign affairs, and other Belgian government agencies. The OCAM then provides its analysis back to the agencies responsible for national security, so that they may act on the information as appropriate.
II. Legislative Framework
The legislative framework within which Belgian intelligence agencies operate is principally provided by the Law of 30 November 1998 Organizing the Intelligence and Security Services (Loi du 30 novembre 1998 organique des services de renseignement et de sécurité). This Law has been amended several times since its initial adoption in 1998, with the most recent amendment occurring in April 2016. It applies to both agencies, and requires them to “respect and contribute to the protection of individual rights and freedoms, as well as to society’s democratic development.” Toward that purpose, this Law provides a basic legal framework for intelligence-gathering activities.
The Law of 30 November 1998 divides intelligence-gathering methods into three categories: ordinary, specific, and exceptional. “Ordinary methods” appear to be those that have the least impact on the privacy of Belgian citizens and residents, such as consulting publicly-available information, accessing and observing public spaces, obtaining information from human sources, or asking an electronic communications service provider about the identity of one of its subscribers. These methods may generally be used by the agents of the intelligence agencies as a routine matter, without specific authorization. “Specific methods” involve more extensive encroachment into privacy, such as observing public spaces with the help of technical devices (which probably refers to microphones and recording devices), surveilling private spaces, identifying the sender and/or recipient of a postal letter or package, or asking an electronic communications service provider about the payment methods and timing of one of its subscribers. These intelligence-gathering methods may only be used if they are proportional to the potential threat being investigated and if ordinary methods are insufficient to obtain the information needed. Furthermore, specific methods may only be employed with the written authorization of the intelligence agency’s leader and after notifying a special oversight commission. Finally, “exceptional methods” are those that are the most intrusive on privacy, such as accessing computer systems; collecting information on bank accounts and bank transactions; or intercepting, listening to, and/or recording private communications. Deceitful practices such as having agents use fake identities are also considered exceptional methods. Exceptional methods must be used in a way that is proportional to the seriousness of the threat, and may only be used to counter a grave threat. Furthermore, an exceptional method may only be used if ordinary and specific methods are insufficient, and after obtaining prior approval from the special oversight commission.
Special protections exist for attorneys, doctors, and journalists. If a specific or exceptional method is deployed against a member of these professions, the president of the target’s professional organization (the Bar for attorneys, the National Council of the Medical College for doctors, or the Professional Journalists’ Association for journalists) must be informed. Furthermore, an exceptional method may only be deployed against a member of these professions if there is serious evidence that he/she has actively and personally participated in the grave threat being investigated.
III. Interception of Communications
Article 18/17 of the Law of 30 November 1998 provides that intelligence services may “listen to, gain knowledge of, and record communications” in order to fulfill their missions. Since secretly accessing, listening to, or recording private communications fall into the exceptional method category described above, an intelligence service must obtain prior authorization from the special oversight commission before employing these measures. When an intelligence service has obtained the required authorization to conduct this kind of surveillance on an electronic communications network, it can serve a written demand to the network operator or the service provider, upon which the network operator or service provider is required to give technical assistance to the intelligence service. Any person who refuses to give technical assistance pursuant to a properly-authorized demand is punishable by a fine of between €26 and €10,000 (about US$30 to US$11,364). On the other hand, companies and individuals who cooperate in giving technical assistance are paid for their services on the basis of government-established rates.
The principal statute governing electronic communications in Belgium requires that network operators as well as end users be capable of allowing the authorities to “listen to, gain knowledge of, and record” communications. A Royal Order from 2010 includes electronic communications service providers alongside network operators as being required to have the technical ability to provide clear and readable (decoded, decompressed, and decrypted) copies of communications requested by Belgian intelligence services. It appears, in other words, that service providers and network operators may not use or make available any form of encryption that they would be unable to decrypt themselves.
The Law of 30 November 1998 created an administrative commission to oversee the activities of the Sûreté de l’Etat and the SGRS. As discussed in Part II above, this administrative commission must be notified every time an intelligence service employs a specific method, and its prior approval is necessary for an intelligence service to use an exceptional method. The commission is independent, and is composed of three members and three alternates. Two of the three members, and two of the alternates, must be judges. The commission members are appointed for a period of five years, renewable twice.
In addition to the administrative commission, oversight over both intelligence agencies is exercised by the Belgian Parliament through the Comité permanent de contrôle des services de renseignements et de sécurité (Standing Intelligence Agencies Review Committee), also known as the Comité permanent R (R Standing Committee). This Committee monitors and assesses the legality of the means employed by the Belgian intelligence agencies. Additionally, this Committee evaluates the effectiveness of Belgian intelligence as well as the level of coordination between the intelligence agencies. The R Standing Committee publishes yearly reports on its activity (though the latest available one, as of the writing of this report, is for 2014). It also publishes some of its investigative reports and a few of its advisory opinions.
Prepared by Nicolas Boring
Foreign Law Specialist
 Que sont les services belges de renseignement et de sécurité? [What Are the Belgian Intelligence and Security Services?], Comité permanent de contrôle des services de renseignements et de sécurité [Belgian Standing Intelligence Agencies Review Committee], http://www.comiteri.be/index.php/fr/34-pages-fr/297-que-sont-les-services-belges-de-renseignement-et-de-securite (last visited June 9, 2016), archived at https://perma.cc/ZT8F-JHYR, English version at http://www.comiteri.be/index.php/en/39-pages-gb/305-what-do-intelligence-and-security-services-stand-for, archived at https://perma.cc/TYA7-AGX2.
 Qu’est-ce que l’Organe de coordination pour l’analyse de la menace? [What Is the Coordination Unit for Threat Assessment?], Comité permanent de contrôle des services de renseignements et de sécurité [Belgian Standing Intelligence Agencies Review Committee] (last visited June 9, 2016), http://www.comiteri.be/ index.php/fr/34-pages-fr/298-qu-est-ce-que-l-organe-de-coordination-pour-l-analyse-de-la-menace, archived at https://perma.cc/5PQ7-4B8N.
 Loi organique du 30 novembre 1998 des services de renseignement et de sécurité [Organizational Law of 30 November, 1998, Organizing the Intelligence and Security Services], http://www.ejustice.just.fgov.be/cgi_loi/ change_lg.pl?language=fr&la=F&table_name=loi&cn=1998113032, archived at https://perma.cc/4C9Z-L9V7.
 Loi du 21 avril 2016 portant des dispositions diverses Intérieur. – Police intégrée [Law of 21 April 2016 Establishing Miscellaneous Interior Provisions. – Integrated Police] arts. 17–23, http://www.ejustice.just.fgov. be/cgi_loi/change_lg.pl?language=fr&la=F&table_name=loi&cn=2016042106, archived at https://perma.cc/U4UK-A58L. .
 Loi du 30 novembre 1998, art. 2.
 Id. arts. 14–18/17.
 Id. art. 14–18.
 Id. art. 18/2.
 Id. art. 18/3.
 Id. art. 18/2.
 Id. art. 18/9.
 Id. art. 18/2.
 Id. art. 19/9.
 Id. art. 18/17.
 Id. art. 43/1.
 Id. art. 18/17.
 Id. art. 18/18.
 Loi du 13 juin 2005 relative aux communications électroniques [Law of June 13, 2005, Regarding Electronic Communications] art. 127, http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn= 2005061332&table_name=loi, archived at https://perma.cc/92QM-7E5S.
 Arrêté royal du 12 octobre 2010 déterminant les modalités de l’obligation de collaboration légale en cas de demandes concernant les communications électroniques par les services de renseignement et de sécurité [Royal Order of October 12, 2010, Establishing the Conditions of the Obligation of Lawful Collaboration in Cases of Demands by Intelligence and Security Services Regarding Electronic Communications] art. 8, http://www.ejustice. just.fgov.be/cgi_loi/loi_a.pl, archived at https://perma.cc/5ZG7-VUL9.
 Id. art. 43/1.
 Mission [Role], Comité permanent de contrôle des services de renseignements et de sécurité [Belgian Standing Intelligence Agencies Review Committee], http://www.comiteri.be/index.php/fr/comite-permanent-r/mission (last visited June 9, 2016), archived at https://perma.cc/4ZDZ-V3RF, English version at http://www.comiteri.be/index.php/en/standing-committee-i/role, archived at https://perma.cc/7RSH-5SW9.
 Rapports d’activité [Activity Reports], Comité permanent de contrôle des services de renseignements et de sécurité [Belgian Standing Intelligence Agencies Review Committee], http://www.comiteri.be/ index.php/fr/publications/rapports-dactivites-3 (last visited June 10, 2016), archived at https://perma.cc/TSD6-MSYE, English version at http://www.comiteri.be/index.php/en/publications/activity-reports, archived at https://perma.cc/SKF8-C9B2.
 Rapports d’enquêtes [Investigation Reports], Comité permanent de contrôle des services de renseignements et de sécurité [Belgian Standing Intelligence Agencies Review Committee], http://www.comiteri.be/index.php/fr/publications/rapports-denquetes-3 (last visited June 10, 2016), archived at https://perma.cc/HYY3-A64U, English version at http://www.comiteri.be/index.php/en/publications/investigation-reports, archived at https://perma.cc/88K2-58XA.
 Avis [Advice], Comité permanent de contrôle des services de renseignements et de sécurité [Belgian Standing Intelligence Agencies Review Committee], http://www.comiteri.be/index.php/fr/publications/avis (last visited June 10, 2016), archived at https://perma.cc/LE62-6VDS, English version at http://www.comiteri.be/ index.php/en/publications/advice, archived at https://perma.cc/2NF6-8XRY.
Last Updated: 09/27/2016