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. The Act has come under scrutiny in recent years, however, and there are plans to overhaul it, with expectations that draft legislation may be presented to the Dutch Parliament by the summer of 2016.
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 investigating individuals and organizations, carrying out security screenings, furthering vital sectors’ security, gathering international intelligence, and compiling risk and threat analyses. 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). The AIVD can ask RID personnel to gather intelligence material; it also “works intensively with local governments” to help counter Islamic radicalism. As the AIVD emphasizes on its website, it “is not a police service,” and while it “has the access to information, the powers and the expertise” to investigate the roots of national security risks and threats, it does not investigate criminal acts but rather “identifies threats and advises others, including policymakers and public officials at both the national and local levels, as to how they might act upon the information received.”
In addition to the police regional intelligence units, there is a Central Intelligence Division that is part of the Central Unit of the National Police. The Central Intelligence Division handles “coordination of law enforcement information in the Netherlands and its exchange at [the] international level” and oversees INTERPOL in The Hague.
Other intelligence services are the Military Intelligence and Security Service (Militarie Inlichtengen- en Veiligheidsdients, MIVD), the Fiscal Intelligence and Investigation Service-Financial Control Service, the National Signals Intelligence Organization, the Inspectorate SZW, and the National Coordinator for Security and Counterterrorism (for analysis of threats and coordination of counterterrorism activities).
In mid-2014, the Joint Sigint Cyber Unit (JSCU) began operations as a joint effort launched by the AIVD and MIVD. Under the covenant reached between the two services, the National Sigint Organization, together with other specialized sections of the two services, were merged into the new cooperative arrangement.
The AIVD shares intelligence analyses with the secret EU Intelligence Analysis Centre (INTCEN), and INTCEN shares its analyses with the AIVD.
II. Legislative Framework
The Intelligence and Security Services Act 2002 governs the activities and powers of the AIVD and also the MIVD. The Act includes provisions on transparency and accountability, measures that “are a direct product of the European Convention on Human Rights.”
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. The special powers include surveillance, using intelligence agents,conducting searches, opening mail “and other consignments” without sender or addressee consent, and monitoring and tapping telecommunications. 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.” 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.
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. 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.” The AIVD and the MIVD may process the personal data of persons when this is necessary in the context of investigations concerning other countries; tap, receive, record, and monitor conversations, telecommunications, or data transfer by means of an automated network with ministerial permission (with certain exceptions); and receive and record non-cable-bound telecommunications originating from or intended for other countries. 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.
Both the AIVD and MIVD must submit an annual report before May 1 every year. 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).” 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.
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. “Subject to a legal obligation to confidentiality,” the commission “is entitled to inspect any information it wishes.” The commission also publishes an annual report.
IV. New Developments
The Dutch government believes that technological developments have overtaken the 2002 Act, and that for the intelligence services to be able to continue to carry out their tasks as well as possible, adjustments in the law are necessary. The desired adjustments would mainly involve the collection of data from telephone, email, and Internet, be it over ether or via cable, to be done only if there is reason to do so, with an independent review beforehand and supervision afterwards. Additional requirements would be imposed to make sure that the privacy of Dutch citizens remains protected as much as possible.
A draft law to address the above concerns is currently under review by the Council of State (an advisory body one of whose major tasks is to advise the government and Parliament on legislation and governance). The current Act has 106 articles; the proposed revision has 151.
An explanatory memorandum on the draft law contains appendices that (1) correlate the current Act’s provisions and those of the proposed revision; (2) give the detailed structure of the draft law (chapter, section, and paragraph titles); and (3) provide in chart form and overview of the special powers and safeguards found in the draft law. The chart has six categories: the special power concerned; the authority granting permission for it; the duration of the power; the applicable test (in all cases, necessity, proportionality, and subsidiarity); the data retention/destruction period; and whether the law provides for role separation/job separation/compartmentalization with respect to the special power. In the case of the power of surveillance and monitoring, for example, the power-granting authority is in general the Minister of Security and Justice or the chief of the service, and the duration is a maximum of three months, with a possible three-month extension; the chart indicates the data retention period and the role separation categories do not apply to this power. One of two footnotes attached to the special power category states that to the extent that the exercise of the power takes place against a journalist with the purpose of finding out the journalist’s source, the permission of the court in The Hague is required.
The draft legislation is expected to be presented to the Dutch Parliament in the summer of 2016.
Prepared by Wendy Zeldin
Senior Legal Research Analyst
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 Fiscale Inlichtingen- en Opsporingsdienst - Economische Controledienst (FIOD), Sociale Kaart Nederland, https://landelijk.socialekaartnederland.nl/organisaties/fiscale-inlichtingen-en-opsporingsdienst-economische-controledienst-utrecht (last visited June 13, 2016), archived at https://perma.cc/JA26-RXQX.
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 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 June 13, 2016), archived at https://perma.cc/DU3Z-75FW.
 Nationaal Coördinator Terrorismebestrijding en Veiligheid (NCTV); see National Coordinator for Security and Counterterrorism, Annual Plan NCTV 2014, at 3–5 (Jan. 27, 2014) https://english.nctv.nl/Images/nctv-jaarplan2014-27012014-engels-def-internet_tcm92-536300.pdf?cp=92&cs=65023, archived at https://perma.cc/ 9FJE-26A7; Annual Plan NCTV 2015 (Jan. 20, 2015), https://english.nctv.nl/Images/nctv-jaarplan-2015-en-final-web-lores-los_tcm92-579341.pdf?cp=92&cs=65023, archived at https://perma.cc/VHL5-LU57.
 Joint Sigint Cyber Unit, AIVD-MIVD partnership in de praktijk, Nationale Veiligheid en Crisisbeheersing (Feb. 2015), https://cyberwar.nl/d/20150226_JSCU-AIVD-MIVD-samenwerking-in-de-praktijk_magazine-nationale-veiligheid-en-crisisbeheersing-2015-nr-1.pdf, archived at https://perma.cc/VU7N-ZEHJ. The article has been translated in a personal blog: Matthijs R. Koot, Dutch Joint Sigint Cyber Unit (JSCU), AIVD-MIVD Partnership in Practice, Matthijs R. Koot’s Notebook (Feb. 26, 2015), https://blog.cyberwar.nl/2015/02/joint-sigint-cyber-unit-aivd-mivd-partnership-in-practice, archived at https://perma.cc/LS8D-S7TY. For the agreement on the JSCU’s establishment, see Kamerbrief over Convenant Joint Sigint Cyber Unit [Parliamentary Paper on the Joint Sigint Cyber Unit Covenant], De Minister van Binnenlandse Zaken en Koninkrijksrelaties en de Minister van Defensie, July 3, 2014, https://www.rijksoverheid.nl/binaries/rijksoverheid/documenten/kamerstukken/2014/07/03/ kamerbrief-over-convenant-joint-sigint-cyber-unit-jscu/kamerbrief-over-convenant-joint-sigint-cyber-unit-jscu.pdf, archived at https://perma.cc/G7B2-MELG.
 Didier Bigo et al., ANNEX 1 – The EU Member States Practices in the Context of the Revelations of NSA Large Scale Operations: 5. The Netherlands, in EU Parliament, Directorate-General for Internal Policies, National Programmes for Mass Surveillance of Personal Data in EU Member States and Their Compatibility with EU Law 73–74 (2013), http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/ 493032/IPOL-LIBE_ET(2013)493032_EN.pdf, archived at https://perma.cc/D8TJ-4WRK. According to this 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. at 13. See also Kamerbrief over Convenant Joint Sigint Cyber Unit, supra note 12, at 1 (announcement preceding the text of the Covenant).
 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, archived at https://perma.cc/F7KE-4HQB. This blog post is a translation of responses by Dutch Cabinet members to parliamentary questions about INTCEN.
 The Intelligence and Security Services Act 2002, AIVD, https://english.aivd.nl/about-aivd/contents/the-intelligence-and-security-services-act-2002 (last visited June 13, 2016), archived at https://perma.cc/RV5U-SA5C; Act of 7 February 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), AIVD, https://english.aivd.nl/binaries/aivd-en/documents/publications/2002/ 03/26/bulletin-of-acts-orders-and-decrees-of-the-kingdom-of-the-netherlands/wiv2002en.pdf, archived at https://perma.cc/NH52-WZL3. For the Dutch text of the Act, see Wet op de inlichtingen- en veiligheidsdiensten 2002 (Feb. 7, 2002, mostly in force on May 29, 2002, as last amended effective Jan. 1, 2013), http://wetten.over heid.nl/ BWBR0013409/geldigheidsdatum_14-09-2014, archived at https://perma.cc/Z6XW-D6NZ.
 The Intelligence and Security Services Act 2002, supra note 15.
 Powers, AIVD, https://english.aivd.nl/about-aivd/contents/the-intelligence-and-security-services-act-2002/powers (last visited June 13, 2016), archived at https://perma.cc/Y2TP-PEW8.
 Intelligence and Security Services Act 2002, art. 20.
 Id. art. 21.
 Id. art. 22.
 Id. art. 23.
 Id. arts. 24–27. For AIVD’s digital intelligence activities, see General Intelligence and Security Service, Annual Report 2013, at 18 (Apr. 23, 2014), https://english.aivd.nl/binaries/aivd-en/documents/annual-report/2014/ 04/23/annual-report-2013/annual-report-aivd-2013.pdf, archived at https://perma.cc/Q4KP-JTWC. See also General Intelligence and Security Service, Annual Report 2015: A Range of Threats to the Netherlands, https://english.aivd.nl/binaries/aivd-en/documents/annual-report/2016/05/26/annual-report-2015-aivd/annual-report-2015-aivd.pdf, archived at https://perma.cc/9FGR-2D7E; Review Committee on the Intelligence and Security Services, Annual Report 2015, http://english.ctivd.nl/binaries/ctivd-eng/ documents/annual-reports/2016/06/07/annual-report-2015/ctivd-annual-report-2015.pdf, archived at https://perma. cc/M3V3-C7D7.
 Powers, supra note 17.
 Intelligence and Security Services Act 2002, art. 19 ¶ 1.
 Id. art. 6 ¶ 2(d).
 Id. art. 7 ¶ 2(e).
 Id. art. 13 ¶¶ 1(c) & 2(c).
 Id. art. 25 ¶¶ 3 & 8.
 Id. art. 26 ¶ 1.
 Id. art. 36 ¶ 1(c).
 Id. art. 8.
 Notification, AIVD, https://english.aivd.nl/about-aivd/contents/the-intelligence-and-security-services-act-2002/ notification (last visited June 13, 2016), archived at https://perma.cc/3P58-9FEB.
 Regulatory Commission, AIVD, https://english.aivd.nl/about-aivd/contents/the-intelligence-and-security-services-act-2002/regulatory-commission, archived at https://perma.cc/7QRL-G8EC (last visited June 13, 2016).
 Nieuwe Wet op de inlichtingen- en veiligheidsdiensten (Wiv) [New Law on Intelligence and Security Services (Wiv)], Rijksoverheid, https://www.rijksoverheid.nl/onderwerpen/bevoegdheden-inlichtingendiensten-en-veiligheidsdiensten/inhoud/wet-op-de-inlichtingen-en-veiligheidsdiensten-wiv (last visited June 10, 2016), archived at https://perma.cc/WY9S-UVKK.
 Wet op de inlichtingen- en veiligheidsdiensten 20.., Internetconsultatie [Internet Consultation], https://www.internetconsultatie.nl/wiv (consultation period July 2–Sept. 1, 2015), archived at https://perma.cc/ VXD4-3SYD; The Council of State,Raad van State, https://www.raadvanstate.nl/the-council-of-state.html (last visited June 13, 2016), archived at https://perma.cc/5BYY-PLML.
 Concept-wetsvoorstel Wet op de inlichtingen- en veiligheidsdiensten 20XX: wettekst (consultatieversie juni 2015): Regels met betrekking tot de inlichtingen- en veiligheidsdiensten alsmede wijziging van enkele wetten (Wet op de inlichtingen- en veiligheidsdiensten 20 [Draft Bill Law on Intelligence and Security 20xx; legislative text (consultation version June 2015): Rules Concerning the Intelligence and Security and Amending Certain Laws (Law on the Intelligence and Security 20..) (of June 2015)], available at Internetconsultatie, https://www.internet consultatie.nl/wiv/document/1715, archived at https://perma.cc/FY8W-FGTJ.
 Voorstel van Wet op de inlichtingen- en veiligheidsdiensten 20XX; memorie van toelichting (consultatieversie juni 2015): Memorie van Toelichting [Proposed Law on the Intelligence and Security 20XX (Consultation Version June 2015): Explanatory Memorandum], available at Internetconsultatie, https://www.internetconsultatie.nl/wiv/ document/1721, archived at https://perma.cc/R3J6-ACKX.
 Id. at 217.
 Id. at 217 n.203.
 Nieuwe Wet op de inlichtingen- en veiligheidsdiensten (Wiv), supra note 37.
Last Updated: 09/27/2016