Ctivd: modified Wiv is vague about ‘as targeted as possible’ deployment powers

The Ctivd, which supervises the Dutch secret services, has responded to the proposed changes to the Wiv 2017, or the ‘sleep law’. For example, the regulator is of the opinion that the term ‘as targeted as possible’ is not well defined in the law.

In the proposed amendments to the law, which were drawn up in response to the Sleepwet referendum, an attempt was made to include a motion by former PvdA MP Jeroen Recourt in the law. That motion states that the intelligence services must use their powers ‘as targeted as possible’ and that this requirement must therefore be considered when granting permission for the use of the powers. This was one of the measures to prevent the occurrence of a ‘drag net’. According to the Ctivd, however, it is unclear what exactly the mention of ‘as targeted as possible’ in the amended law means.

For example, the supervisor states that this requirement is not further described in the explanatory memorandum or the parliamentary discussion of the new Wiv. As a result, it is unclear how the intelligence services should fulfill this requirement. The Ctivd therefore recommends including an explanation in the explanatory memorandum and writes: “The term ‘as targeted as possible’ means that the degree of focus in the entire process of data processing plays a role in its lawfulness. may entail that the use of a power is limited as much as possible to those targets, information carriers and data that can contribute to the research assignment, the specific research questions and the purposes for which the data are processed.”

The regulator also has recommendations on other points. For example, due to its current placement in the law, the requirement of focus would only apply to a certain number of powers, but it would be important that it applies to all powers of the services. In addition, the amended law would result in a lower level of protection for lawyers and journalists by removing a certain safeguard regarding the systematic collection of data about individuals from open sources. The Ctivd therefore wants that reference to be reinstated. A third recommendation is that there should be an ‘unambiguous regulation’ with regard to a notification that is necessary if unevaluated data is shared with foreign services. Finally, the supervisor asks whether the distinction between data from the Ctivd and data from the services with regard to the Open Government Act can be abolished.

The internet consultation on the proposed changes to the new Wiv has now closed. The changes are intended to take effect from 1 January 2019, the government said earlier. The new law has been in effect since May 1. A lawsuit to stop the unaltered law from taking effect was unsuccessful.