UPDATE 2016-04-15: the government has decided to propose that the (existing) targeted interception power, the (new) untargeted cable interception power and the (existing) targeted hacking power will be subject to ex ante and binding oversight by a newly to be established oversight committee entitled “Toetsingscommissie Inzet Bevoegdheden” (TIB). That committee will consist of persons that have a background in the judicial branch. The government has submitted the revised draft bill to the Council of State, and after that, will be submitted to the House of Representatives. The CTIVD remains tasked with its existing ex post, non-binding oversight.
Dutch website Nu.nl reports (in Dutch) that Harm Brouwer, the chairman of the Dutch Review Committee on the Intelligence and Security Services (CTIVD), signaled intelligence oversight problems in his address to the Dutch Senate. The CTIVD currently has no legal right to oversee or block actions of the intelligence services on an ex ante basis (i.e., beforehand): all oversight is performed ex post (afterwards). Brouwer states that without ex ante oversight, the oversight system is on a ‘slippery slope’. The Dutch Intelligence & Security Act of 2002 was reviewed in 2013 and a bill is currently being drafted by the Dutch government. Brouwer became the new CTIVD chairman starting January 1st 2014.
A translation of the report by Nu.nl:
Oversight committee warns about oversight on intelligence service AIVD
The actions of the Dutch security services should not be reviewed afterwards (ex post), but beforehand (ex ante). The subsequent decision should be legally binding.
Harm Brouwer, the chairman of the committee tasked with oversight on the intelligence services, stated that before the Dutch Senate on Tuesday.
According to Brouwer, the oversight is on a ‘slippery slope’ because it is currently being done after the fact. “It should be noted that judicial review is generally marginal”, he states.
The actions of the intelligence and security service AIVD and its military counterpart, the MIVD, are reviewed afterwards. Especially the fact that the conclusions of the CTIVD are not legally binding restricts the oversight, according to Brouwer.
He pointed out that citizens are generally unaware of the actions of these services. Therefore it can be difficult to prove that a service made a mistake.
Through a spokesman, the CTIVD emphasizes that Brouwer does not imply that there is too much wiretapping is going on in the view of the CTIVD.
Examples
Brouwer mentioned examples of how things can be different. “Belgium has ex ante review of the heaviest special powers, such as phone taps and internet taps”. If it is concluded that a wiretap is not permitted, the wiretap is not carried out, according to Brouwer.
The chairman of the CTIVD believes that it is now up to the Dutch parliament to improve the oversight.
On Tuesday, the Dutch Senate has talks with experts on espionage and the gathering of so-called metadata, following the revelations by whistleblower Edward Snowden. Last year, Snowden revealed, amongst others, that the NSA is wiretapping phone and data connections on a large scale.
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