On 9 April 2020 the Dutch government announced (in Dutch) that the Council of Ministers approved the establishment of an independent committee to evaluate the Intelligence and Security Services Act of 2017 (“Wiv2017”). In the legislative process that followed the draft bill — back then referred to as “Wiv20xx” — released in 2015, the House of Representatives and the Senate had requested the government to add an evaluation clause to the law, which the government accepted and was subsequently included in the Coalition Agreement 2017-2021 (.pdf; coalition partners being VVD, CDA, D66 & CU).

The announcement states that the committee’s task is broad: it evaluates the entire law. Based on prior official documents it can be expected that the committee will also explicitly examine, from a legal perspective, the way of working of the new ex ante oversight committee introduced by the Wiv2017, the “Toetsingscommissie Inzet Bevoegdheden” aka TIB. According to the coalition agreement, specific attention will also be paid to whether “arbitrary mass collection of data of citizens in the Netherlands or abroad” is (not) taking place. Be reminded that the Wiv2017 introduced so-called “OOG interception”, which for the first time ever in the Netherlands laid down explicit legal provisions for bulk-like interception of communications on non-ether links, e.g. optic-fiber & copper cables. Prior to the Wiv2017, legal provisions only existed for bulk interception of ether links, e.g. HF radio & satcom. Also, the prohibition of so-called “sigint search” on domestic-domestic communication was removed per the Wiv2017 (“sigint search” is that phase that precedes “sigint select”. “Sigint search” is, roughly speaking, browsing/searching network links that can be intercepted to identify channels/links/places of possible interest to the legal tasks of the intelligence services. Data can be intercepted in bulk from there for subsequent querying in the “sigint select” phase to obtain communication matching specific persons, organizations and/or keywords as part of an ongoing investigation). Depending on outcome of the evaluation it is possible that changes will be proposed to the current law, for instance the addition of new legal safeguards and improvements to the oversight mechanisms.

The remainder of this post consists of an (unofficial) translation of the announcement that the government released yesterday.

Evaluation Committee for the Intelligence and Security Services Act

News release | 09-04-2020 | 14:45

The Council of Ministers has approved the establishment of an independent committee to evaluate the Intelligence and Security Services Act of 2017. This implements the decision, laid down in the coalition agreement, to evaluate the Act no later than two years after its entry into force on 1 May 2018.

The evaluation committee is chaired by Mrs R.V.M. (Renee) Jones-Bos and will start its work as of 1 May 2020 insofar the measures to combat the Coronavirus allow. In addition to the chairperson, six other members will be appointed. Their appointment will take place as soon as the AIVD has concluded their security screening procedure with positive results. The composition of the committee will take into account the knowledge and expertise required for the evaluation in the areas of legislation, operational knowledge of the work of intelligence and security services, digital security and data analysis, human rights and privacy.

The committee is charged with evaluating the law itself, not with evaluating the proper functioning of the services. The evaluation has a broad scope. An important research question is whether the objectives of the law, i.e., modernisation of the powers of the intelligence services and strengthening of the safeguards, are being achieved. The committee must also examine whether the new law has proved to be a workable instrument in practice for the performance of the services’ tasks and what bottlenecks and points for attention exist in the application of the law.

The committee will release its findings in a public evaluation report. The date of delivery of the report will be determined after consultation with the chairperson and will depend on the impact that the Corona measures have on the progress of the committee’s work. For the time being, publication is expected before the end of this year.