Surveillance by intelligence services – Volume II: field perspectives and legal update
Almost all Member States (27 out of 28) have
established international intelligence cooperation in
their national legal frameworks, defining and thereby
regulating competences of intelligence services –
either by granting them the authority to establish
international cooperation or instructing them to enter
into international partnerships. Examples of Member
States with laws imposing a duty on intelligence
services to cooperate with foreign partners include
Belgium,175 Latvia,176 Luxembourg,177 the Netherlands178
and Portugal.179 It is not apparent from the Maltese legal
framework whether international intelligence service
cooperation is prescribed by law: international exchange
of data is indirectly referred to as being ‘sensitive
information’, in cases where disclosure has not been
consented to by the foreign government and cannot,
consequently, be disclosed to the Security Committee.180
Very few Member States have explicitly articulated
the modalities for both establishing and implementing
international cooperation within the enabling laws.
For instance, Article 59 of the Act on the Security
Intelligence System of the Republic of Croatia provides
that “the National Security Council shall approve the
establishment and termination of cooperation with
individual foreign agencies, on the basis of a proposal
from the heads of security and intelligence agencies,
and after obtaining the opinion of the Council for
Coordination of Security and Intelligence Agencies.”181
Few Member States have detailed laws describing
the procedure intelligence services must follow to
implement international cooperation. Germany, for
instance, does have such laws.182 Several Member
175 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. 20 (1).
176 Latvia, Law on Constitution Protection Bureau (Satversmes
aizsardzības biroja likums), 5 May 1994, Art. 5 para. 5(3).
177 Luxembourg, Act of 15 June 2004, Art. 3(1).
178 The Netherlands, Act on the Intelligence and Security
Services 2017 (Wetsvoorstel Wet op de inlichtingen- en
veiligheidsdiensten 2017), Art. 88.
179 Poland, Act on the Internal Security Agency and the
Intelligence Agency (Ustawa o Agencji Bezpieczeństwa
Wewnętrznego oraz Agencji Wywiadu), 24 May 2002, Art. 8.
180 Malta, Security Service Act, Art. 14(3).
181 Croatia, Act on the Security Intelligence System of the
Republic of Croatia, 30 June 2006, Art. 59.
182 Germany, BNDG, S. 13 and following and Germany, G10 Act,
S. 7a. See Löffelmann, M. in Dietrich, J.-H. and Eiffler,
S. (eds) (2017), p. 1274 and following and See
Siems, T. in Dietrich, J.-H. and Eiffler, S. (eds) (2017),
p. 1479 and following.
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States – Belgium,183 Denmark,184 Germany,185 Latvia,186
Lithuania,187 the Netherlands,188 Portugal,189 and the
United Kingdom190 – have provided for the establishment
of internal rules to be followed when exchanging
information internationally. These internal procedural
documents are drafted either by the services (Belgium,
the Netherlands and Portugal) or by the executive
(Latvia, Lithuania, and Poland). None of these internal
guidelines are publicly available.
However, in a few Member States, parts of these
internal rules are publicly available. In the Netherlands,
for instance, where internal guidelines are classified,
the Dutch oversight body (CTIVD) published its first
in-depth assessment of these procedures in 2009.191
In 2016, an updated and revised version of this report
also included a detailed presentation of the most recent
internal guidelines adopted by the AIVD in 2013 and
2014.192 In the United Kingdom, general guidelines are
also classified, but specific guidelines – on international
intelligence cooperation where there is a risk of torture,
for instance – are publicly available.193
Internal guidance applied by intelligence services
might take different forms. In Denmark and Latvia,
exchanges of intelligence may take place under specific
rules and regulations, drafted by the services in the
case of Denmark194 and the cabinet of ministers in
183 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. 20.
184 Denmark, Danish Security and Intelligence Service (PET),
Legal Matters – Legislation.
185 See description in Germany, Federal Parliament (Deutscher
Bundestag) (2017b), p. 504 and p. 509 and following.
186 Latvia, Law on the State Secrets (Par valsts noslēpumu),
17 October 1997, Art. 9, para. 7.
187 Lithuania, the State Defence Council (Valstybės gynimo
taryba), establishes guidelines for international cooperation
of intelligence institutions with intelligence and security
institutions of foreign states, international organisations and
institutions, which are not publicly available.
188 The Netherlands, Act on the Intelligence and
Security Services 2017 (Wet op de inlichtingen- en
veiligheidsdiensten 2017), Art. 88.
189 Portugal, Law 50/2014, 1st amendment to law 9/2007 of
19 February that lays down the Organic law of the SecretaryGeneral of the Intelligence Services of the Portuguese
Republic, the Strategic Defence Intelligence Service and the
Security Intelligence Service, 13 August 2014.
190 United Kingdom, Investigatory Powers Tribunal, Liberty
& Others v. the Security Service, SIS, GCHQ, IPT/13/77/H,
5 December 2014, par. 42.
191 The Netherlands, CTIVD (2009), pp. 78-80.
192 The Netherlands, CTIVD (2016a), pp. 14-17.
193 See Born, H., Leigh, I. and Wills, A. (2015), p. 127, and United
Kingdom, Cabinet Office (2010), Consolidated Guidance to
Intelligence Officers and Service Personnel on the Detention
and Interviewing of Detainees Overseas, and on the Passing
and Receipt of Intelligence Relating to Detainees, Cabinet
Office, July 2010.
194 Denmark, Danish Security and Intelligence Service (PET),
Legal Matters – Legislation.