CLFR - Netherlands

Monday, January 8, 2018 - 12:20

PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

TELECOMMUNICATIONS ACT

Pursuant to Article 13.1 of the Telecommunications Act (“TCA”) providers of public telecommunications networks and publicly available telecommunications services (“service providers”) shall only make their telecommunications networks and telecommunications services available to users if these can be wiretapped. Rules may be set by or pursuant to a general administrative order regarding the technical susceptibility to tapping of public telecommunications networks and publicly available telecommunications services.

The TCA requires public telecommunication service providers to set up and maintain a reasonable interception capability in its network. This includes the capability for the service provider in question to be able to implement an interception after having received an interception warrant.

It should be noted that the service provider shall 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 pursuant to the Dutch Code of Criminal Procedure (“Wetboek van Strafvordering” or “DCCP”) or consent pursuant to the Intelligence and Security Services Act 2002 (“Wet op de inlichtingen- en veiligheidsdiensten 2002” or “ISSA”) for 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 give effect to 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 intercept warrant where the public prosecutor believes it is necessary in the interests of investigation of criminal cases.

The Minister of Interior and Kingdom Relations may furthermore authorise interception by the General Intelligence and Security Agency (“Algemene Inlichtingen- en Veiligheidsdienst” or “AIVD”) and the Minister of defence may authorise interception by the Military Intelligence and Security Agency (“Militaire Inlichtingen- en Veiligheidsdienst” or “MIVD”) pursuant 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 unauthorised interception is a criminal offence (Article 139c DCC) which can lead to a penalty of maximum EUR 20.250.

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 TCA states that the service provider is obliged to provide the data requested on the basis of articles 126(n), 126(na), 126(u), 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 ISSA. The ISSA also provides for an obligation to cooperate in decrypting the data.

The service provider is obliged to retain and/or provide location data and traffic data and data which can identify the user of the telecommunications network (article 13.2(a) TCA and articles 126(ng), 126(ug) and 126(zh) DCCP. Generally, the content of customer communications is not stored. However articles 126(ng), 126(ud) and 126(ug) DCCP provide 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 decrypting the data (article 126(nh) and 126(uh) DCCP).

Article 13.2(a) TCA states that the service provider is obliged to retain certain information. Pursuant to article 13.2(b) 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) DCCP 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 or 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 telecommunication 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 TCA)

In addition, under article 14.4 of the TCA (which has not yet entered into force) the Minister of Economic Affairs, shall be empowered, in the event of exceptional circumstances that make this necessary, to give instructions to service providers in relation to – amongst other things – the maintenance, exploitation or use of their public telecommunications networks. In case of a war, the Minister of Economic Affairs may only do so in agreement with the Minister of Defence (Article 14.3 TCA). Pursuant to article 14.2 TCA, Article 14.4 TCA may only enter into force by Royal Decree, on the recommendation of the Prime Minister.

OVERSIGHT OF THE USE OF THESE POWERS

Instructions given by the Minister cannot be appealed and 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

TELECOMMUNICATIONS ACT

Under Article 14.4 of the Telecommunications Act, 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 Act, it cannot be excluded that the Minster might 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 Telecommunications Act gives the Minister of Economic Affairs wide powers in exceptional circumstances. Although it is not explicitly stated in the Act, 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 Telecommunications Act gives the Minister of Economic Affairs wide powers in exceptional circumstances. Although it is not explicitly stated in the Act, 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

TELECOMMUNICATIONS ACT

Instructions given by the Minister of Economic Affairs under Article 14.4 of the Telecommunications Act 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 February of 2015.