Contributed By Vondst Advocaten N V
The main laws applying to government access to data for intelligence, anti-terrorism or other national security purposes are the Dutch Code of Criminal Procedure for regular public prosecution and the Intelligence and Security Services Act 2017 for the two secret services, being the General Intelligence and Security Service and the Military Intelligence and Security Service.
For accessing means of communication and private homes, the general rule is that independent judicial approval is required.
The secret services (both the General Intelligence and Security Service and the Military Intelligence and Security Service) are supervised by the Review Committee for the Intelligence and Security Services (‘Commissie van Toezicht op de Inlichtingen en Veiligheidsdiensten’) (CTIVD). As well as the CTIVD, the Review Committee use of Powers (‘Toetsingscommissie Inzet Bevoegdheden’) (TIB) has been established to review the use of the specific or general powers of the secret services. As a basic rule, access to personal data requires prior approval of the responsible minister or TIB.
It is generally believed that Dutch law enforcers and regulators obey legal restrictions to access to data. If personal data has been accessed without proper legal grounds, the basic rule is that courts will ignore such data and may declare a certain investigation or prosecution unlawful. The CTIVD is actively supervising the secret services. For instance, it has investigated the processing of mass internet traffic by the secret services and generally found this processing to be legal.
On 14 November 2018, CTIVD and TIM issued a joint statement announcing co-ordinated co-operation in supervising the secret services.