UPDATE 2015-07-15: Dutch intel oversight committee (still) seeks to publish statistics on use of special powers, suggests topics for debate on the new bill.
The below is a comparison of (lawful) public availability of statistics about the use of investigatory powers by intelligence & security services in Belgium and the Netherlands; I intend to add more countries if I can find the necessary information (legislation, etc.).
Belgium: ADIV and VSSE
Belgium has a non-military intelligence & security service (VSSE) and a military intelligence and security service (ADIV). Oversight on lawfulness and expediency is carried out by the Belgian Standing Committee I (in Dutch: “Vaste Comité I”), an independent specialist body consisting of three persons, and some staff. The Standing Committee I is established by the Act Governing Review of the Police and Intelligence Services and the Coordination Unit for Treat Assessment of 1991 (hereafter: “Review Act of 1991”). The VSSE and ADIV are established by the Intelligence Services Act of 1998 (hereafter: “W.I&V”). The W.I&V provides the VSSE and ADIV with special investigatory powers. Oversight reports written by the Standing Committee I are not automatically fully published; it is possible to withhold elements from publication.
Article 35-2 of the Review Act of 1991 states that the Standing Committee I reports quantitatively on the use of such powers. My translation of the relevant part in that article:
(…) The report contains the number of warrants, the duration of use of the special methods for data collection, the number of persons [=targets] involved, and, where appropriate, the yields. The report also describes the activities of the Standing Committee I.
There is a restriction, however:
The elements contained in the report may not harm the proper functioning of the intelligence and security services or put the cooperation between Belgian and foreign intelligence and security services at risk. [note: the latter firstly concerns information shared with Belgium by foreign services.]
With that in mind, take note of the statistics in the table below that the Standing Committee I included in its 2013 activity report (.pdf, in Dutch and French): a LOT of transparency, I’d say. The fact that it is published is evidence in support of the hypothesis that this information is not considered to harm proper functioning of the Belgian services.
| “Specific” or “exceptional” investigative power (W.I&V 1998): | Authorization level | # 2013 (ADIV) | # 2013 (VSSE) |
| observation using technical means, in public places and private places accessible to the public or observation, with or without the use of technical means, of private places which are not accessible to the public (Article 18/2, §1, 1°) | Head of service + give notice to oversight body | 14 | 109 |
| inspection, using technical means, of public places, private places accessible to the public and closed objects located in these places (Article 18/2, §1, 2°) | Head of service + give notice to oversight body | 0 | 0 |
| consulting data identifying the sender or addressee of a letter or the owner of a PO box (Article 18/2, §1, 3°) | Head of service + give notice to oversight body | 0 | 0 |
| measures used to identify the subscriber or habitual user of an electronic communication service or the means of electronic communication used; (Article 18/2, §1, 4°) | Head of service + give notice to oversight body | 66 | 613 |
| measures used to find call information for electronic communication methods (Article 18/2, §1, 5°) | Head of service + give notice to oversight body | 15 | 136 |
| localisation of the origin or destination of electronic communications. (Article 18/2, §1, 5°) | Head of service + give notice to oversight body | 36 | 224 |
| observation, with or without the use of technical means, among others in private places which are not accessible to the public, or in premises used for professional purposes or as a residence for a lawyer, doctor or journalist (Article 18/2, §2, 1°) | Oversight body (unanimous prior consent) | 1 | 6 |
| inspection, with or without the use of technical means, among others of private places which are not accessible to the public or premises used for professional purposes or as a residence for a lawyer, doctor or journalist and of closed objects found in these places (Article 18/2, §2, 2°) | Oversight body (unanimous prior consent) | 0 | 6 |
| setting up or appealing to a legal entity to support operational activities and appealing to officers of the service, under a false identity or in a false capacity (Article 18/2, §2, 3°) | Oversight body (unanimous prior consent) | 0 | 0 |
| opening and reading letters, either sent via a postal service or not (Article 18/2, §2, 4°) | Oversight body (unanimous prior consent) | 0 | 6 |
| collecting data on bank accounts and bank transactions (Article 18/2, §2, 5°) | Oversight body (unanimous prior consent) | 5 | 11 |
| intrusion into a computer system, with or without the use of technical means, false signals, false codes or false capacities (Article 18/2, §2, 6°) [hacking] | Oversight body (unanimous prior consent) | 0 | 12 |
| tapping, listening to and recording communication (Article 18/2, §2, 7°) | Oversight body (unanimous prior consent) | 17 | 81 |
Bulk collection: neither ADIV nor VSSE currently (=Dec 2014) have a legal basis for any form of bulk collection; neither via intercepts, nor via requests for traffic/subscriber addressed to telco’s (source).
Netherlands: AIVD and MIVD
The Netherlands has a general intelligence & security service (AIVD) and a military intelligence and security service (MIVD). Oversight on lawfulness is carried out by the Dutch Review Committee on the Intelligence and Security Services (CTIVD), and independent specialist body consisting of three persons. Oversight on expediency resides at the Minister. All three entities are established by the Dutch Intelligence & Security Act of 2002 (hereafter: “Wiv2002”). The Wiv2002 provides the AIVD and MIVD with special investigatory powers.
CTIVD oversight reports are always sent to Parliament and openly published, but may, and often do, contain a classified appendix. The CTIVD can decide for itself what topics it wants to investigate, but also start an investigation at the request of Parliament. In 2008, the CTIVD for the first time looked into the use of interception powers: targeted interception ex Article 25 Wiv2002, and selection from bulk-interception ether communication ex Article 27 Wiv2002. In 2010, the CTIVD decided to make interception an annually recurring topic of investigation.
Several attempts have been made by Dutch media, civil organizations (notably Bits of Freedom) and MPs to obtain interception statistics from the intelligence services. In 2010, Parliament adopted a motion requesting interception statistics. Two statistics were published: the number of targeted interceptions by the AIVD (1,078) and the MIVD (53) during 2009. No statistics from other years are available. In October 2014, a court in The Hague accepted the government’s argument that such numbers, in combination with other information that is already public or will become public in the future, provide insight into the methods and practices used by the AIVD and that this poses a risk to the effective functioning of the AIVD. In December 2014, the CTIVD decided to publish these statistics — but it got censored last-minute by the Minister of the Interior. Interesting stuff.
The table below shows the known statistics for the use of special powers by the AIVD and MIVD over 2013: none. Open question: how should the difference with Belgium be explained?
| “Special” investigative power (Wiv2002): | Authorization level | # 2013 (AIVD) | # 2013 (MIVD) |
| surveillance and monitoring of persons and property (Article 20) | Head of service, or delegate (in general); Minister (in case of house/residence); | ? | ? |
| deployment of agents (Article 21) | Head of service, or delegate | ? | ? |
| establishment of legal persons (Article 21) | Head of service, or delegate | ? | ? |
| searches of private places, including housing and closed objects (Article 22) | Head of service, or delegate (in general); Minister (in case of house/residence); | ? | ? |
| examination of objects to establish the identity of individuals (Article 22) | Head of service, or delegate | ? | ? |
| opening letters and packages (Article 23) | Court | ? | ? |
| intrusion into an automated work (Article 24) [hacking] | Head of service, or delegate | ? | ? |
| interception of communications, telecommunications or data exchange (Article 25) | Minister | ? | ? |
| exploring non-cablebound telecommunications (‘searching’) (Article 26) | None | ? | ? |
| undirected interception and directed selection of non-cablebound telecommunications (Article 27) | None (bulk interception); Minister (selecting from bulk intercepts) | ? | ? |
| retrieval of traffic and subscriber data from providers (Articles 28 and 29) | None | ? | ? |
| physical intrusion in support of other powers (Article 30) | None | ? | ? |
Bulk collection: yes, via interception (Article 26/27), but only ether. Both AIVD and MIVD have that power, but it is used far more for military tasks (MIVD) than national security. It is carried out by the NSO, which becomes part of the JSCU. In November 2014, the Dutch cabinet announced it seeks to expand this power to permit bulk interception of cable communication. Legislation is currently (=Dec 2014) being drafted. According CTIVD report 38 (.pdf, in Dutch; see p.39), Article 28/29 do not permit acquisition of bulk traffic/subscriber data from telco’s. Article 24 (hacking) has been used to obtain web forum data in bulk; in cases where many non-targets where involved, the CTIVD judged this did not satisfy the requirement proportionality (although those cases did satisfy the requirement of necessity).
Germany: BND, MAD, BfV and LfV
INFORMATION NEEDED: all information, tips, hints, suggestions, etc. are welcomed: see “Contact me” on the right. I’m both interested in learning whether or not statistics are officially published, and if they are, where I can find them.
UK: GCHQ, MI5, MI6, MoD (RIPA)
INFORMATION NEEDED: all information, tips, hints, suggestions, etc. are welcomed: see “Contact me” on the right.
An aggregate statistic is available of the number RIPA warrants issued to GCHQ, MI5, MI6 and the MoD, combined. Much more statistics are available; see the IOCC’s report (.pdf) over 2013.
EOF