Stages of intelligence service oversight
strategic surveillance, the chair of the Parliamentary
Control Panel or the chair’s proxy needs to give their
provisional approval within three days, and full approval
by the control panel has to be obtained within two
weeks.399 The surveillance measure can start before
the G 10 Commission’s approval but the data cannot
be used. The approval request needs to take place
with 24 hours. 400 In the context of foreign to foreign
surveillance, the 2016 reform lists situations which
qualify as emergency. The approval of the Independent
Committee needs to be sought without delay. When
a request is rejected, the data must be destroyed.401
Protected professions and privileged
information
ECtHR case law: surveillance measures
concerning media
“In the instant case, […] the use of special powers would
appear to have been authorised by the Minister of the
Interior and Kingdom Relations, if not by the head of the
AIVD or even a subordinate AIVD official, but in any case
without prior review by an independent body with the
power to prevent or terminate it […]. Moreover, review
post factum, cannot restore the confidentiality of journalistic sources once it is destroyed.”
ECtHR, Telegraaf Media Nederland Landelijke Media B.V. and Others v. the
Netherlands, No. 39315/06, 22 November 2012, paras. 100-101
Special authorisation and approval procedures may
also apply when the scope of the surveillance includes
information protected by professional privilege.
Member State laws often provide enhanced protection
to certain professionals (e.g. media professionals,
lawyers, judges). The Council of Bars and Law Societies
of Europe (CCBE), for example, has adopted specific
recommendations in this area. 402 In the Netherlands,
several lawyers in 2015 filed a complaint in court,
alleging that they had been under surveillance. The
court decided that the procedure in place at the time
for obtaining authorisation to intercept lawyers’
communications was unlawful and violated the right
to private life, in the absence of prior approval by an
independent body.403 At the end of 2015, this judgment
as well as the ECtHR’s decision in Telegraaf Media
Nederland Landelijke Media B.V. and Others triggered
a legislative amendment aiming to better protect
journalists’ sources. The Minister of the Interior and
the Minister of Defence established an independent
temporary commission to provide for the ex-ante
oversight of surveillance operations in connection to the
399
400
401
402
403
Germany, G 10 Act, S. 14 (2).
Ibid. ss. 10 and 15 (6).
Germany, BNDG, S. 9 (4).
See CCBE (2016).
The Netherlands, District Court The Hague (Rechtbank Den
Haag), Case No. C/09/487229/KG ZA 15-540, 1 July 2015.
special powers included in the Intelligence and Security
Services Act 2002, allowing for the tapping of lawyers
and journalists. Since 1 January 2016, this commission,
chaired by the chair of the CTIVD, gives binding advice
to the ministers on the authorisation of measures that
1) may affect privileged lawyer-client communication
or 2) are aimed at identifying journalists’ sources. 404
The 2017 reform of the Dutch legislation transferred
this authority to the Court of The Hague.405
In France, the law protects parliamentarians, lawyers,
judges and journalists. Requests for surveillance
measures in respect to these professionals must be
considered by the CNCTR in a plenary session. The urgent
procedure cannot be applied. Moreover, transcripts of
the collected intelligence data must be transmitted
to the CNCTR for a specific control of the necessity
and proportionality of the risks entailed by targeting
potentially privileged communication, assessed in
terms of the need for enhanced safeguards. 406 The
CNCTR outlined the scope of such enhanced protection,
and provided definitions of the covered professional
categories, in an opinion adopted in October 2015.407
CNCTR on enhanced protection for certain
professions
“Any person, irrespective of nationality who, in France,
his country of origin or internationally, exercises one of
the professions cited in the law or holds a mandate of
similar nature to that of French parliamentarians, shall
enjoy the protection of the law.”
France, CNCTR (2016), p. 102 [FRA translation]
Similarly, the United Kingdom provides for enhanced
safeguards when interception or equipment interference
would target parliamentarians or communications
protected by legal privilege, would include confidential
journalistic material, or where its purpose is to identify
or confirm a source of journalistic information.408
404 Netherlands, Minister of the Interior and Kingdom Relations
& Minister of Defence (Minister van Binnenlandse Zaken en
Koninkrijksrelaties & Minister van Defensie) (2015). accessed
on 12 February 2016.
405 The Netherlands, Act on the Intelligence and
Security Services 2017 (Wet op de inlichtingen- en
veiligheidsdiensten 2017) Arts. 27 and 30.
406 France, Interior Security Code, Art. L. 821-7.
407 France, CNCTR (2016), p. 102 and following. See also the
pending case ECtHR, Association confraternelle de la press
judiciaire v. France, No. 49526/15.
408 United Kingdom, Investigatory Powers Act 2016, for
interception: ss. 26-29; for equipment interference: ss. 111114. Ss. 26-29 and 111-114 are yet into force and will be
brought into force in due course by means of regulations
made by the Secretary of State (See United Kingdom,
Investigatory Powers Act 2016, Explanatory Note). See also
ECtHR, 10 Human Rights Organisations and Others v. the
United Kingdom, No. 24960/15, pending before the ECtHR.
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