Surveillance by intelligence services – Volume II: field perspectives and legal update
intelligence cooperation in some Member States and the
limitations introduced in the legal frameworks of others –
are not the only aspects hampering such oversight.
Accountability deficit
“Often, it is not possible for an oversight body to ascertain whether the data which the national service receives
from abroad was collected lawfully. A national oversight
body can only examine whether the national service provided or received information lawfully.”
The Netherlands, CTIVD Annual Report 2014-2015, p. 35
The deficits described above by the Dutch oversight
body prompted reflection on the possibility to
create alternative oversight mechanisms that fit the
specificities of international cooperation. An innovative
way of performing oversight has emerged from these
reflections: the “peer constraint” mechanism.
The third party rule restricts the majority of oversight
bodies’ ability to provide safeguards on the international
exchange of data. However, the gaps are sometimes
filled by other actors and in different ways, notably
through peer-constraint mechanisms. 467 To receive
intelligence, an intelligence service must be trustworthy
in the eyes of its counterparts. Here, the pressure
exercised by an intelligence service on its foreign
counterpart replicates, to a certain extent, the constraint
exercised by oversight bodies. In addition, the interest
of any service in receiving intelligence magnifies this
incentive. This is the case in Belgium where, since
2016, the intelligence services have a degree of control
on international cooperation.
108
this process was endorsed in January 2016, when the
1998 law on intelligence services was modified on the
recommendation of the Parliament and the Standing
Committee I to grant oversight competence to the
Belgian intelligence services.468
Deeks describes ‘peer constraints’ as follows: “Through
various mechanisms (formal and informal, public and
private), one state’s intelligence community can affect
the way in which another intelligence community
conducts […] surveillance; the amount and type of
intelligence the other intelligence community receives;
and, less tangibly, how the other intelligence community
views its own legal obligations”.469 Such constraint may
be formally inserted as a caveat in the international
agreement or may result from the tacit observation of
one country’s legal framework, including the extent of
the oversight structure and the complaints and judicial
decisions taken against the intelligence community.470
In the aftermath of the Snowden disclosures, peer
constraints have become increasingly used among
partners to ensure that international cooperation
follows democratic principles. Approaches taken in
to accessing, processing and controlling intelligence
data are increasingly monitored by foreign partners
to evaluate to which extent exchanged data will be
lawfully processed, and to which extent they may
access reliable data. Changes in legislation framing
the access, use and control of intelligence may prompt
either an intensification of or a decline in collaboration
from foreign counterparts.
Of the 17 Member States where oversight of international cooperation is not provided for in law, guidance
on the conditions for overseeing international intelligence cooperation might be included in classified internal guidelines drafted by the executive or the head of
services. Generally, such guidance invites or imposes
on the intelligence services the duty to exercise a priori and/or a posteriori control on data transfers taking place within international cooperation. In Belgium,
Peer-constraint mechanisms present certain addedvalue over classical oversight mechanisms. Firstly,
they tackle the lack of expertise some overseers may
have while assessing surveillance techniques and the
implications of specific safeguards regarding the use
of the data collected. Secondly, they give intelligence
services a real interest in being deemed trustworthy
by foreign counterparts. Third, they are completely
independent from the executive of their foreign partner.
However, peer-constraint mechanisms will only have
(a limited) impact if they originate from a state with
an effective oversight system.
467 Deeks, A. (2016), pp. 17-29.
468 Belgium, Organic Law concerning the intelligence
and security services (Loi organique des services de
renseignement et de sécurité), 30 November 1998, Art. 7
and 11.
469 Deeks, A., (2016), p. 4.
470 Ibid. pp. 17-22.