PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE
According to Article 13.1 of the Telecommunications Act (the TCA), providers of public telecommunications networks and publicly available telecommunications services (service providers) will only make their telecommunications networks and services available to users if these can be wiretapped. Rules may be set by or follow a general administrative order regarding the technical susceptibility to tapping of public telecommunications networks and publicly available telecommunications services.
The TCA requires public telecommunications service providers to set up and maintain a reasonable interception capability in their networks. This includes being able to implement an interception after having received an interception warrant.
Note that the service provider will bear the costs of the investment, exploitation and maintenance of the interception capabilities.
In addition, failure to comply with an interception warrant is a criminal offence (Article 184 of the Dutch Criminal Code (Wetboek van Strafrecht or DCC
DUTCH CODE OF CRIMINAL PROCEDURE
Article 13.2 of the TCA obliges providers of public telecommunications networks to cooperate with the enforcement of an administrative order according to the Dutch Code of Criminal Procedure (Wetboek van Strafvordering or DCCP) or consent according to the Intelligence and Security Services Act 2002 (Wet op de inlichtingen- en veiligheidsdiensten 2002 or ISSA) over the tapping or recording of communications that takes place via their telecommunications networks, or for the communications handled by them. Service providers are required to take all reasonable practical steps requested by the relevant authority to comply with an interception warrant.
It follows from Articles 126(m) (serious crime), 126(t) (planned organised crime) and 126(zg) (indications of terrorist crime) of the DCCP that a supervisory judge can issue an interception warrant where the public prosecutor believes it is necessary for the investigation of criminal cases.
The Minister of Interior and Kingdom Relations may, furthermore, authorise interception by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst or AIVD) and the Minister of Defence may authorise interception by the Military Intelligence and Security Service (Militaire Inlichtingen- en Veiligheidsdienst or MIVD) according to Article 25 of the ISSA. Interception by the MIVD outside military territory also requires the authorisation of the Minister of Interior Affairs.
It should be noted that illegal interception is a criminal offence (Article 139c of the DCC) which can lead to a penalty of maximum EUR82,000.
DISCLOSURE OF COMMUNICATIONS DATA
The TCA requires service providers to store traffic data. This data would include the location of the cell of origin.
Article 13.4 of the TCA states that the service provider is obliged to provide the data requested on the basis of Articles 126(n), 126(na), 126(u) and 126(ua) of the DCCP.
Moreover, the service provider is obliged to disclose data to the AIVD and MIVD on the basis of Article 28 of the ISSA. The ISSA also includes an obligation to cooperate in decrypting the data.
The service provider is obliged to retain and/or provide location data, traf c data and data which can identify the user of the telecommunications network (Article 13.2(a) of the TCA and Articles 126(ng), 126(ug) and 126(zh) of the DCCP. Generally, the content of customer communications is not stored. However, Articles 126(ng), 126(ud) and 126(ug) of the DCCP state that a provider can be obliged to provide stored data when it can reasonably be expected that it has access to such data. In addition, the service provider can be obliged to cooperate in the decryption of the data (Articles 126(nh) and 126(uh) of the DCCP).
Article 13.2(a) of the TCA states that the service provider is obliged to retain certain information. According to Article 13.2(b) of the TCA, the service provider is obliged to cooperate with an order on the basis of Articles 126(hh), 126(ii), 126(nc)–126(ni) and 126(uc)–126(ui) of the DCCP, and to disclose such information to the law enforcement agency.
NATIONAL SECURITY AND EMERGENCY POWERS
In exceptional circumstances connected with the enforcement of international rules of law, international relations or war, the Minister of Economic Affairs may issue instructions, in agreement with the Minister of Foreign Affairs, to providers of public telecommunications networks and publicly available telecommunications services regarding the provision of telecommunications from and to other countries. In agreement with the Minister of Security and Justice, the Minister of Economic Affairs may also issue instructions to such providers regarding the use of messages from government bodies to warn the public of impending disasters or emergencies (Article 14.1 of the TCA).
In addition, under Article 14.4 of the TCA (which at the time of writing has not yet entered into force) and in the event of the necessary exceptional circumstances, the Minister of Economic Affairs will be able to give instructions to service providers concerning the maintenance and exploitation or use of their public telecommunications networks. In the case of a war, the Minister of Economic Affairs may only give such instructions in agreement with the Minister of Defence (Article 14.3 of the TCA). According to Article 14.2 of the TCA, Article 14.4 of the TCA may only enter into force in exceptional circumstances, by Royal Decree and on the recommendation of the Prime Minister.
OVERSIGHT OF THE USE OF THESE POWERS
Instructions given by the Minister of Economic Affairs cannot be appealed and the authorisation of a supervisory judge must be obtained in respect of the investigations of criminal cases.
CENSORSHIP RELATED POWERS
SHUT-DOWN OF NETWORK AND SERVICES
Under Article 14.4 of the Telecommunications Act (TCA), in exceptional circumstances (usually war, terrorism, natural disaster, etc), the Minister of Economic Affairs may require network providers such as Vodafone to maintain, market or use their telecommunications networks in line with his or her instructions. Although it is not explicitly stated in the TCA, the Minster might be able to instruct Vodafone to shut down its entire network or a particular service.
BLOCKING OF URLS & IP ADDRESSES
THE TELECOMMUNICATIONS ACT
As set out above, Article 14.4 of the TCA gives the Minister of Economic Affairs wide powers in exceptional circumstances. Although it is not explicitly stated in the TCA, it cannot be excluded that the Minster might instruct Vodafone to block URLs or IP addresses.
POWER TO TAKE CONTROL OF VODAFONE’S NETWORK
As set out above, Article 14.4 of the TCA gives the Minister of Economic Affairs wide powers in exceptional circumstances. Although it is not explicitly stated in the TCA, the nature of the powers given to the Minister could effectively extend to taking control of Vodafone’s network.
OVERSIGHT OF THE USE OF POWERS
Instructions given by the Minister of Economic Affairs under Article 14.4 of the TCA cannot be appealed.
This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in May of 2017.