Analysis: New Dutch spy bill proposes changes in approval, oversight

AIVD HollandOn July 2, 2015, the Dutch government released for public consultation a long-awaited bill that overhauls the Dutch Intelligence and Security Act of 2002. Known also as Wiv2002, the Act is the legal framework for the operations of the General Intelligence and Security Service (AIVD) and the Military Intelligence and Security Service (MIVD). The bill is a complete rewrite of the present law, and includes expansions of power, as well as changes to the approval regime and oversight. The below provides a brief overview focused on the interception and hacking powers.

The services’ special powers, such as interception and hacking, can only be used for a subset of their legal tasks. That subset includes national security,
foreign intelligence and military intelligence. The government annually determines the intelligence needs of itself and other intelligence consumers; the outcome is used to focus and prioritize strategic and operational plans and activities.

The services have and hold a specific interception power, i.e., interception of communication of a specified person, organization and/or technical characteristic (e.g. IMEI, phone number, IP address, email address). This requires approval from the minister in charge. The services also have and hold a non-specific interception power —i.e., ‘bulk’ interception— but the bill expands that power from ether-only to “any form of telecommunications or data transfer”, thus including cable networks. Furthermore, the bill no longer limits the non-specific power to communication that has a foreign source and/or foreign destination, meaning that domestic communication is in scope. Like the specific power, the non-specific power requires approval from the minister in charge. The services can retain raw bulk intercepts not just for one year, as is presently the case, but for three years. Encrypted raw intercepts can be stored indefinitely, as is presently the case; the three year retention period is triggered when bulk-intercepted encrypted data is decrypted.

Certain categories of “providers of communication services” will be required, in consultation with the services, to provide access to their networks, if so requested by the services on the basis of approval from the minister. Those categories will be determined by governmental decree. The term “provider of a communication service” is derived from the term “service provider” in the Budapest Convention on Cybercrime of 2001, and is defined so as to include public telecommunication networks, non-public telecommunications networks, hosting providers and website operators. The services have and hold the right to, under certain conditions and after approval from the Minister, compel “anyone” to decrypt data or hand over keys. The approval request for that must include an indication of the conversations, telecommunications or data transfers that are targeted.

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News you may have missed #892 (legislative update)

Jens MadsenBy IAN ALLEN |
►►Canadian lawmakers vote to expand spy powers. Legislation that would dramatically expand the powers of Canada’s spy agency has cleared a key hurdle. The House of Commons on Wednesday approved the Anti-Terror Act, which was spurred by last year’s attack on parliament. The act would give the Canadian Security Intelligence Service’s (CSIS) the ability to operate overseas and make preventative arrests. It also makes it easier for police to arrest and detain individuals without charge. Dominated by the Conservative party, the Senate is expected to approve the act before June.
►►Danish spy chief resigns over Islamist attacks. The head of Denmark’s Police Intelligence Service (PET), Jens Madsen, quit just hours before a report was due to be released into February’s fatal shootings in Copenhagen by an Islamist. Omar El-Hussein killed two people at a free speech debate and a synagogue before being shot dead by police. “It’s no secret that it is a very demanding position,” said Madsen, without giving a reason for his resignation. Justice Minister Mette Frederiksen declined to say whether the move was linked to criticisms of the police response to the attack.
►►OSCE urges France to reconsider controversial spying bill. The Organization for Security and Cooperation in Europe urged French lawmakers to reconsider provisions of a proposed law that would expand government surveillance, a measure that was backed by French parliamentarians on Tuesday, despite criticism from rights groups. “If enforced, these practices will impact the right of journalists to protect the confidentiality of sources and their overall work”, OSCE Representative on Freedom of the Media Dunja Mijatovic said Wednesday. “If confidentiality of sources is not safeguarded within a trusted communications environment, the right of journalists to seek and obtain information of public interest would be seriously endangered”, he added

France approves sweeping spy bill in response to Islamist attacks

Attack on Charlie HebdoBy JOSEPH FITSANAKIS |
Lawmakers in the French National Assembly have overwhelmingly approved a new bill giving the country’s intelligence services unprecedented domestic spy capabilities. The bill, which is dismissed by critics as France’s version of the United States’ PATRIOT Act, was drafted by the ruling Socialist Party just days after a group of armed Islamists attacked several targets in Paris. The attacks were primarily directed against France’s popular satirical magazine Charlie Hebdo (see photo). A dozen members of the magazine’s staff, including several internationally-known cartoonists, were killed at the magazine’s headquarters in the French capital on January 7 of this year.

The newly approved bill provides blanket-approval for the wholesale interception and storage of communications metadata, which include information about the location and size of Internet-based communications exchanges. They also include information on the identities of those sending or receiving electronic messages. The legislation also includes a provision for the establishment of a new supervisory body called the National Commission for Control of Intelligence Techniques. Its mission will be to supervise the use of surveillance powers by France’s six intelligence agencies, as well as to handle complaints relating to communications interception from members of the public.

As the bill progressed through France’s houses of parliament, the French government and its supporters argued that the country needed national legislation that would take into consideration the rapid technical changes in digital telecommunications. But critics, which included most of France’s Internet service providers, claimed that the new law would give intelligence agencies unreasonably broad surveillance powers and would hamper online commerce. These claims, however, failed to convince lawmakers; the bill was thus approved by 438 votes for to 86 against. Most parliamentarians from France’s three main parties —the Socialist Party, the rightwing Union for a Popular Movement, and the centrist Union of Democrats and Independents— voted in favor of the bill. Observers noted with surprise that most lawmakers from the Radical Party of the Left also voted in favor of the bill. In contrast, the communist-led Left Front, as well as the Greens, voted overwhelmingly against the bill.

News you may have missed #819 (UKUSA edition)

Charles E. AllenBy IAN ALLEN | |
►►Aussie spies’ exemption from Freedom of Information laws to end? Currently, all Australian intelligence agencies are exempt from the operation of federal Freedom of Information (FOI) legislation that allows the public and journalists to seek access to government records. But now Australian Information Commissioner John McMillan has called for the intelligence agencies to no longer be exempted from FOI laws. Professor McMillan and FOI Commissioner James Popple have made the recommendation in a 97-page submission to the review of FOI laws by former Defence Department secretary and diplomat Allan Hawke.
►►US spy agencies move towards single super-cloud. The US intelligence community is developing a single cloud computing network to allow all its analysts to access and rapidly sift through massive volumes of data. Now in its eighth month, the goal of the effort is to connect the Central Intelligence Agency’s existing cloud to a new cloud run by the National Security Agency. This NSA-run network consists of five other intelligence agencies and the FBI. Both of these clouds can interoperate, but the CIA has its own unique needs because it must work with human intelligence, which necessitates keeping its cloud slightly separate, according to Charles Allen, formerly Undersecretary of Homeland Security for intelligence and analysis.
►►Canadian Army struggles with intelligence-gathering. The Canadian Army is trying to hold on to its intelligence-gathering capability and its ability to disrupt spying in the face of budget strain, according to documents from the Canadian Department of National Defence. The Canadian Press, which obtained the documents, says the Army is “anxious to protect HUMINT network and to better resource its counterintelligence abilities”, but is worried that its shrinking budget in the post-Afghanistan War era will cause “degradation” in those disciplines.

News you may have missed #815 (analysis edition)

Polygraph testBy IAN ALLEN | |
►►Should polygraph tests be trusted?  US federal polygraph programs have flourished, targeting a growing number of private contractors with more intensely personal questions than ever before. More than 70,000 people are now screened yearly in the US. Yet thousands of people a year could be identified as lying in polygraph screenings when they are not, according to statistical models by the National Academies, which advises the federal government on scientific matters. Under the current system, many of them would have no way to legally challenge polygraphists’ conclusions, especially in the intelligence world.
►►Why the US does not need another law against intelligence leaks. Leonard Downie Jr., vice president at large of The Washington Post, warns that the 2013 Intelligence Authorization Act “would make it a crime for career intelligence officers to provide almost any type of information to the news media, whether the information is classified or not”. He argues that the proposed legislation would “end contacts that often benefit both the government and the public by allowing the exchange of accurate information about vital national security issues and intelligence activities, including abuses requiring attention”.
►►The preventable decline of British defense intelligence. Defense intelligence refers to something rather different from ‘military intelligence’. It takes place at the topmost levels of defense coordination and decision-making and draws together participation from all of the armed services with civilian subject-matter and technical experts and produce consolidated assessments for senior civil servants, ministers and the service chiefs of staff. Philip Davies, director of the Brunel Centre for Intelligence and Security Studies in the United Kingdom, argues that, in Britain, defense and military intelligence remains “something of a poor cousin in the intelligence community, the eternal Peter robbed to pay the Paul of other, seemingly more urgent, defense expenditure and policy priorities”.

News you may have missed #742

'Spy rock' used in AfghanistanBy IAN ALLEN | |
►►Obama warns Congress of overspending on intelligence. The administration of US President Barack Obama is warning that it has “serious concerns” about a 2013 intelligence authorization bill that the House of Representatives passed on Thursday, because it authorizes spending on intelligence activities that go well beyond President Obama’s request. Despite this concern, the administration said that it “does not oppose” the Intelligence Authorization Act, HR 5743, instead supporting language that would repeal some reporting obligations that the government now has to Congress.
►►US forces use fake rocks to spy on Afghans. Palm-sized sensors, disguised as rocks, developed for the American military, will remain littered across the Afghan countryside –detecting anyone who moves nearby and reporting their locations back to a remote headquarters. Some of these surveillance tools could be buried in the ground, all-but-unnoticeable by passersby. These rocks contain wafer-sized, solar-rechargeable batteries that could enable the sensors’ operation for perhaps as long as two decades. Hmm…where have we seen this before?
►►Pakistan spy chief postpones US trip. Pakistan’s spymaster, Lieutenant-General Zahir ul-Islam, has postponed a trip to the United States in the latest sign of the dire state of relations between two supposed allies in the war against Islamist extremists. America has stepped up drone strikes on Pakistani territory in the week since the two countries failed to reach an agreement on NATO supply convoys at a summit in Chicago. Last week, officials in Washington also condemned Pakistan’s decision to jail a doctor who helped the CIA hunt Osama bin Laden.

News you may have missed #741

Glenn CarleBy IAN ALLEN | |
►►MI6 role in rendition could be concealed in new bill. Libyan government officials Sami al-Saadi and Abdel Hakim Belhaj, who allege that they were taken by rendition by Britain to Libya eight years ago, are expected to begin legal proceedings against the British government and Jack Straw, Britain’s former foreign secretary, next month. However, after pressure from the security services, MI5 and MI6, the British government is preparing to publish a Justice and Security Bill that could allow these cases to be held in their entirety behind closed doors.
►►Aussie spy agency defends new headquarters. The Australian Security Intelligence Organisation says its new headquarters in Canberra is not at risk of being spied upon, despite the use of a lot of glass. ASIO director general David Irvine told a senate committee on Thursday it would be impossible for someone with a high resolution camera on the other side of Lake Burley Griffin to spy on the nation’s spies. Australian Greens senator Scott Ludlam had asked whether the design of the “glass palace” could threaten the secrecy of its work.
►►Good interview with ex-CIA officer Glenn Carle. In this interview, Carle, a retired CIA case officer who wrote The Interrogator: An Education, says his former employers have called his publisher asking them to pulp his book; they rang every major network to prevent him going on air. They are, he says several times, “vicious” and have perpetrated a stain on America’s national character.


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