News item | 23-12-2022 | 6:35 pm
Today, a memorandum of amendment went into consultation on the bill for the temporary law on investigations by the AIVD and MIVD into countries with an offensive cyber program against the Netherlands. The temporary law was submitted to the House of Representatives earlier this month and is necessary because of the major (cyber) threat posed by countries such as Russia, China and Iran. To counter this threat, the intelligence and security services must be able to deploy their powers more quickly and effectively against this threat.
The memorandum of amendment regulates two subjects for all intelligence investigations by the services. These are subjects that were originally intended to be regulated in the general revision of the Wiv 2017. Due to a number of developments, including a recent ruling by the Complaints Handling Department of the CTIVD regarding the relevance assessment of several bulk datasets, the government, together together with the Intelligence and Security Services Supervisory Committee (CTIVD) and the Deployment of Powers Review Committee (TIB), believe that these subjects should be regulated by law as soon as possible in the interest of national security and for the protection of fundamental rights. It is therefore not possible to wait for the complete revision of the Wiv 2017, which will still take some time. That is why these subjects are included as amendments in the Temporary Act that has already been submitted to the House of Representatives. In both cases, supervision is strengthened.
The memorandum of amendment stipulates that the services have the option of annually requesting the minister to keep a bulk dataset that has been acquired with special powers for longer. The CTIVD will thereby be given binding authority to rule on the lawfulness of any extension. Bulk datasets are of great importance to the activities of the AIVD and MIVD and enable the services to recognize broader patterns and networks and thereby identify new threats. In the request for permission to keep a bulk dataset longer, it must be substantiated why the bulk dataset is still important for the services’ investigations. In addition, the yield of the past period must be reported and we must look ahead to what this bulk dataset can still yield in the coming year. If the substantiation given is insufficient according to the CTIVD, extension will not be allowed. In that case, the bulk data set will be destroyed.
In addition, the memorandum of amendment follows up on jurisprudence of the Court of Justice (EU) that calls for a prior binding test for permission to collect real-time traffic and location data from persons that the service is investigating; the so-called “stupid tap”. This test is assigned to the TIB.
It is possible to respond to the consultation until 16 January. Subsequently, the contributions to the consultation will be processed, after which the memorandum of amendment will be presented to the Council of State for advice. The amendment to the bill is expected to be submitted to the House in the second quarter of 2023.