Surveillance “in accordance with the law”
new technologies to better respond to new threats (particularly in a counter-terrorism context). Public authorities reacted to the Snowden revelations with enhanced
transparency on the intelligence services’ powers in an
effort to regain the population’s trust which had been
undermined by the revelations. In the case of Germany,
discussions on the legal framework’s shortcomings in the
NSA inquiry committee prompted legal reform in 2016,
even before completion of the committee’s report in
June 2017. Overall, the reforms contributed significantly
to enhanced clarity in the respective laws. Fieldwork participants from the Member States at issue acknowledged
that the reforms brought improvements. However, they
stated that the lack of clarity – and hence the need for
quality legal rules governing the work of intelligence services – remains an issue.
services can request from public authorities the
relevant information they need for their missions. They
can also access the databases of the public sector.100
Specific measures are comparatively more intrusive
into individuals’ private life. They include identification
or localisation, by technical means, of the services
and electronic communication methods to which an
individual is subscribed. The intelligence services may
request this information from telecommunications
providers. The collection of electronic communications
data, such as the location of the recipient of a call,
is also considered a specific measure.101 The most
intrusive targeted surveillance methods in Belgium
are exceptional measures. These permit intelligence
services to interfere with a computer system or listen
to and record electronic communications.102
4.2. Targeted surveillance
regulated by almost all
Member States
In Italy, the law does not explicitly distinguish among
the methods of surveillance depending on the threat.
The Agency for information and external security
(Agenzia informazioni e sicurezza esterna, AISE) and
the Agency for information and internal security
(Agenzia informazioni e sicurezza interna, AISI) may
carry out tapping activities and preventive controls
on communications – such as interception of phone
calls and e-mails – “when these are deemed essential
for performing the tasks assigned to them”.103 The
surveillance methods are similar to those used in judicial
proceedings. The tasks assigned to AISE and AISI are set
out in legislation.104 The intelligence services may use
surveillance methods only to ensure the defence of the
independence, integrity and security of the Republic
from foreign threats or the defence of the internal
security of the Republic and its democratic institutions
from all kinds of threats, subversive activity and forms
of criminal or terrorist aggressions. Nevertheless, the
use of surveillance measures is allowed only where
applied to a single target or a group of targets previously
specified by the intelligence services.105
Targeted surveillance, as regulated in the Member
States’ laws, refers to concrete targets (individuals,
group of individuals or legal entities) upon suspicion
that an act falling within the remit of the intelligence
services’ tasks could be committed before a surveillance
measure can be initiated. In some Member States (e.g.
the United Kingdom), a single targeted surveillance
measure can cover a considerably wide scope of targets.
In Belgium, the State Security (Sûreté de l’Etat)
can research, analyse and treat intelligence that
is connected with the activities of an individual
or a group of individuals who “threaten or could
threaten”, among others, the state’s internal or external
security.96 Such activities are explicitly identified in
the Intelligence Services Act: espionage; intrusion;
terrorism; extremism; proliferation; harmful sectarian
organisations; and criminal organisations.97
The definitions of each of these activities are also set out
in the law.98 The Belgian Standing Committee I confirms,
via its oversight activities, that the intelligence services
have been complying with the requirement to focus their
activities on an individual or a group of individuals.99
The Belgian law envisages the use of ordinary, specific
and/or exceptional methods of surveillance. Within the
context of ordinary surveillance measures, intelligence
96 Belgium, Organic Law of 30 November 1998 on intelligence
and security services (Loi organique du 30 Novembre 1998
des services de renseignement et de sécurité),
30 November 1998, as amended, Art. 8 (1).
97 Ibid.
98 Ibid. Art. 8 (1) (a) – (g).
99 Belgium, Standing Committee I (2015), pp. 20-21.
In the United Kingdom, a targeted interception warrant
is not necessarily related only to a single person or set
of premises. The target can be “a group of persons who
100 Belgium, Organic Law of 30 November 1998 on intelligence
and security services (Loi organique du 30 Novembre
1998 des services de renseignement et de sécurité), 30
November 1998, as amended, Art. 14.
101 Ibid. Art. 18 (2) and (3).
102 Ibid. Art. 18 (10).
103 Italy, Implementing provisions of the Code of Criminal
Procedure (Disposizioni di attuazione del codice di procedura
penale), Art. 226 read in conjunction with Italy, Legislative
Decree no. 144 of 27 July 2005, Art. 4 converted into Law
no. 155 of 31 July 2005, as amended.
104 Italy, Law no. 124 of 3 August 2007 on “Information System
for the security of the Republic and new rules on State
secrets” (Sistema di informazione per la sicurezza della
Repubblica e nuova disciplina del segreto), Arts. 6-7.
105 Italy, Implementing provisions of the Code of Criminal
Procedure (Disposizioni di attuazione del codice di procedura
penale), Art. 226.
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