The Review Committee on the Intelligence and Security Services (CTIVD) and the Investigatory Powers Commission (TIB) are of the opinion that the legislative proposal for the new Protection of National Security by the Intelligence and Security Services Act is unbalanced. They have outlined their view in their input on the legislative proposal as part of the consultation procedure. That input was submitted on Wednesday.
The CTIVD and the TIB note that this legislative proposal expands investigatory powers in various areas, but the associated safeguards are not being strengthened and in some respects actually being eroded.
CTIVD chair Hugo Hillenaar: ‘Making our society more resilient and protecting our national security are key challenges in the current geopolitical situation. In doing so, we must not forget what it is we wish to protect: our democracy and the rule of law. It is important that democracy and the rule of law itself does not come under threat as a result of amendments to the Act.’
TIB chair Anne Mieke Zwaneveld: ‘When amending the Act, it is of particular importance to maintain a balance between the investigatory powers of the intelligence and security services on the one hand, and, on the other, the internal and external democratic safeguards. If investigatory powers are expanded, protection and oversight must also be strengthened. The current legislative proposal does not provide for this.’
The CTIVD and the TIB recognise that the geopolitical situation has changed radically and that the Netherlands is facing increasing and serious threats. These threats are not directed solely against our national security: our democratic constitutional state and the fundamental values on which it is based are also under pressure. It is precisely for this reason that strong and properly equipped intelligence and security services must go hand in hand with a properly functioning system of democratic and rule-of-law safeguards. Investigatory powers and safeguards must be in balance with one another.
Adequate safeguards in the Act:
- protect against the intentional or unintentional unlawful or disproportionate use of the services’ far-reaching investigatory powers;
- make it possible, despite the secret nature of the services’ work, to monitor the services and the ministers responsible effectively and to hold them to account;
- are essential for public trust and the legitimacy of the services.
Necessity and proportionality
The legislative proposal raises questions about the necessity and proportionality of various aspects of the Act. These include, amongst other things, broader possibilities for investigating opponents; new general investigatory powers; the processing of bulk data; the mandatory provision of data by third parties; and the use of automation, such as AI. Furthermore, ministerial involvement in far-reaching decisions is reduced, as the legislative proposal broadens the scope for delegating investigatory powers and responsibilities further within the services. As a result, parliamentary scrutiny is put at a greater distance.
Inadequate conditions and oversight of data processing
In various areas, broader possibilities for data processing are proposed without these always being accompanied by adequate conditions, restrictions and internal controls. The enshrinement of compliance and audit in the law is a positive step, but these functions should be able to fulfil their monitoring role independently and effectively in practice as well.
Crucial rule-of-law safeguards eroded
Crucial rule-of-law safeguards, such as independent external review and oversight, are being eroded in key respects or postponed to a later stage. Furthermore, the legislative proposal offers too few guarantees for an independent review and oversight board, with sufficient powers and resources to perform its tasks properly.
Imbalance
With this joint response, the CTIVD and the TIB aim to provide Parliament and the public with insight into the proposed amendments, the associated risks and the consequences for the system of democratic and rule-of-law safeguards. Where possible, both bodies also make proposals to improve the legislative proposal. Ultimately, it is up to Parliament to assess which investigatory powers are necessary and which checks and balances are required in this regard.
The CTIVD and the TIB stress that the individual amendments should not be assessed in isolation; their interrelationship and cumulative effect are also important. Taken together, the amendments have the effect of expanding the investigatory powers and capabilities of the services in key areas, whilst democratic and rule-of-law safeguards are being eroded.
Image: © CTIVD