Tech & Rights

Dutch intelligence services may continue to receive intelligence from foreign agencies

The Dutch General Intelligence and Security Service may continue to receive intelligence from foreign services, including data collected by the NSA (United States) and GCHQ (United Kingdom).

by Nina Kesar

On 7 September the Dutch High Council ruled that the Dutch General Intelligence and Security Service (AIVD and MIVD) may continue to receive intelligence from foreign services. The intelligence predominantly concerns data collected by the NSA (United States) and GCHQ (United Kingdom).

The plaintiffs in this case were interest groups that advocate for press freedom and privacy, a lawyer, and a journalist. They believe that the Snowden revelations showed that the NSA uses unauthorised data collection methods. They alleged that the NSA violates the fundamental rights of citizens when it collects data. Among other things, the NSA systematically and indeterminately collects metadata, via cable, which contains information about who has communicated electronically, at what time, and from which location. However, it does not include the content of the communication.

Data on Dutch residents collected by NSA

The data collected could include information on Dutch residents, including those who use Facebook or Google. For this reason the plaintiffs argued that the reception of this type of data by the Dutch intelligence services must be prohibited. They contended, among other things, that the Intelligence and Security Services Act of 2002, which although revised in 2017, still applies to this case, does not offer sufficient protection to Dutch residents' basic rights. The court explained the plaintiffs' claims in such a way that they only concerned illegally obtained data and not data received from foreign services in general.

Court rules that Dutch security agencies may continue to receive data

The court ruled that there are insufficient indications that the NSA and GCHQ had violated fundamental rights. The fact that foreign intelligence services sometimes have more powers than the Dutch intelligence services does not mean that the AIVD and the MIVD are not allowed to receive data from these foreign intelligence services. This could be different if the Dutch intelligence services consciously circumvented their own legal restrictions by taking advantage of the broader powers of the foreign intelligence services. The court established that no such abuses had taken place.

In closing, the High Council ruled that none of the plaintiffs' complaints could lead to the annulment of the court's decision. The court was allowed to explain the plaintiffs' claims as it did, and also rightfully ruled that the plaintiffs had insufficiently demonstrated that foreign services were acting unlawfully in obtaining their intelligence. In addition, the High Council stressed that U.S. legislation has changed since the Snowden revelations and the plaintiffs had said too little about the consequences of this new legislation.