PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

CODE OF CRIMINAL PROCEDURE

The Code of Criminal Procedure provides for the possibility to impose measures with a view to intercepting a person’s communications following a warrant by the examining magistrate (“juge d’instruction/onderzoeksrechter”). This warrant also needs to be communicated to the public prosecutor.

A warrant is an order coming from the examining magistrate in which s/he imposes special investigation measures, including interception measures. This order needs to explain why such measure are needed and under which circumstances they will be used.

Article 90ter of the Code of Criminal Procedure grants the examining magistrate, under specified circumstances and for specific cases, the power to issue real-time interception measures.

Article 90quater, §1 of the Code of Criminal Procedure states that the warrant issued by the examining magistrate and authorising the interception measure needs to contain: (i) the indications and the concrete facts proper to the case justifying the interception measure(s), (ii) the reasons for which the measure is necessary to reveal the truth, (iii) the person, means of communication/telecommunications and/or the place of surveillance, (iv) the period during which the surveillance can be executed (no longer than one month starting from the decision ordering the measure); and (v) the name of the criminal police officer that has been designated to execute the measure.

Article 90quater, §2 of the Code of Criminal Procedure states that if the interception measure implicates some kind of processing of a communications network the operator of this network or provider of a telecommunications service (“electronic communications operator”) needs to cooperate, if the examining magistrate requests so.

THE ROYAL DECREE OF THE 9TH JANUARY 2003

The Royal Decree of 9 January 2003 on the modalities for the legal ‘cooperation duty’ in the case of legal action relating to electronic communications lays down the details of this cooperation duty. Article 6 of the Royal Decree deals with the ability for electronic communication operators to assist in realtime interception operations.

The Royal Decree on legal cooperation duty following legal actions lays down that every electronic communications operator needs to designate one or more persons being charged with the cooperation duty (i.e. the duty to cooperate with the prosecution and investigation authorities with a view to tracking down/identifying/intercepting certain data). These persons form the so-called “Coordination Cell Justice”. Electronic communications operators can decide to form a shared Coordination Cell. This Cell takes the measures which are necessary for interception of private communications or telecommunications following receipt of the warrant of the examining magistrate.

THE INTELLIGENCE AND SAFETY SERVICES ACT 1998

The Intelligence and Safety Services Act of 30 November 1998 lays down that intelligence and safety services are allowed to intercept a person’s communications, if national security is at stake. This interception can only be executed after a written request of the Director-General of the State Security (“the Director-General”).

A real-time interception is a so-called “exceptional method for collecting data”. These exceptional methods need to be authorised by the Director-General. With regards to the exceptional methods, article 18/10 of the Intelligence and Safety Services Act of 30 November 1998 describes the authorisation to be granted by the Director-General prior to the execution of the interception measures. Before this authorisation becomes final, it has to be made subject to the advice of the Administrative Commission supervising the specific and exceptional methods for collecting data by the intelligence and safety services. The Commission examines in its advice whether the relevant legislation and general principles of subsidiarity and proportionality have been respected. If the advice is negative, the interception measure cannot be executed.

The authorisation needs to be written and contain: (i) a description of the exceptional threats justifying the interception, (ii) reasons why the interception is necessary, (iii) persons or entities whose communications are being intercepted, (iv) the technical means used to intercept, (v) the period of interception; and (vi) names of the intelligence officers involved in the operation.

With regards to an interception measure (in addition to the article 18/10-authorisation), article 18/17, §1 of the Intelligence and Safety Services Act of 30 November 1998 lays down that the intelligence services can intercept a person’s communications. §3 lays down that electronic communications operators are required to cooperate with the intelligence services if the interception requires processing by an electronic communications network.

As mentioned above, the Director-General needs to draft a written request to the relevant operator in order for the latter to cooperate. This request contains the advice of the Commission on the general authorisation to use interception measures (as laid down in Article 18/10).

THE ROYAL DECREE 2010

The Royal Decree of 15 October 2010 on specific rules for the legal ‘cooperation duty’ in case of actions of the intelligence services regarding electronic communications lays down the details of this cooperation duty. Every electronic communications operator needs to designate one or more persons being charged with the cooperation duty (i.e. the duty to cooperate with the intelligence services authorities with a view to tracking down/identifying/intercepting certain data). These persons form the so-called “Coordination Cell Justice”. Electronic communications operators can decide to form a shared Coordination Cell. This Cell takes the measures which are necessary for interception of private communications or telecommunications following receipt of the written and reasoned decision of the Director-General of the intelligence service.

THE ELECTRONIC COMMUNICATIONS ACT 2005

Article125, §2 of the, the Electronic Communications Act of 13 June 2005 (relating to interception demands coming from authorities competent for prosecution and investigation of criminal offences and/or the intelligence service), states that the King determines the modalities for the means to be put in place with a view of identifying, tracking down, localising, getting aware of and intercepting electronic communications. These modalities have been determined in the Royal Decree of 15 October 2010 mentioned above.

Article 127, §1, 2° of the Electronic Communications Act lays down the technical and administrative measures electronic communications operators need to take with a view of being able to identify, track down, intercept and become aware of private communications (upon demand of the competent authorities and/or the intelligence service). If the operator does not take such measures (i.e. internal procedures for dealing with these requests), it is not allowed to offer the electronic communication service in respect of which these measure(s) have not been taken.

DISCLOSURE OF COMMUNICATIONS DATA

THE ELECTRONIC COMMUNICATIONS ACT OF 13 JUNE 2005

This Act contains provisions on the duty of electronic communications operators to provide metadata upon demand of the competent prosecution/investigation authorities (see below – Criminal Procedure Code) and of the intelligence services (see below – Intelligence and Safety Services Act of 30 November 1998).

Article 122, §2 of the Electronic Communications Act of 13 June 2005 lays down that electronic communications operators may be required not to remove or to anonymise their traffic data relating to subscribers or end users, if authorities prosecuting criminal offences or the intelligence services require them to do so.

Article 125, §2 states that the King determines the modalities on the means to be put in place with a view to identifying, tracking down, localising, getting aware of and intercepting electronic communications.

Article 127, §2, 1° lays down the technical and administrative measures electronic communications operators need to take with a view to being able to identify, track down and intercept, private communications. If they do not take such measures (i.e. internal procedures for dealing with these requests), they are not allowed to offer the electronic communication services for which these measure(s) have not been taken. The modalities for these measures have been determined in the Royal Decree on legal cooperation duty following legal actions, mentioned below.

THE ROYAL DECREES OF 2003 AND 2010

Article 6, §1, 1° of the Royal Decree on legal cooperation duty following legal actions, as well as art. 8, §1, 1° of the Royal Decree on cooperation duty following intelligence service actions, specify that the content of communications may be transmitted to the authorities prosecuting and investigating criminal offences as well as the intelligence services.

The requirements of the Electronic Communications Act as described above should also be borne in mind when considering the following criminal procedures and intelligence services-related procedures.

THE CRIMINAL PROCEDURE CODE

There are specific authorisations and notifications required for investigation measures set out under Criminal Procedure Code:

  • 46 bis: Following a reasoned written decision from the public prosecutor, an electronic communications operator may be required to provide data allowing a subscriber/user of an electronic communications service or an electronic communications service to be identified.
  • 88 bis: Following a reasoned court order from the examining magistrate, he or she may require an electronic communications operator to provide data allowing identification and location of a subscriber or an electronic communications service.

For every means of telecommunication used and that is subject to a court order, the day, hour, duration and location of the call are recorded in an official report (“proces-verbaal/procès-verbal”).

THE INTELLIGENCE AND SAFETY SERVICES ACT OF 30 NOVEMBER 1998

Collection of identification and localisation data relating to a subscriber or end-user is classified as a specific method of investigation (whereas interception measures are considered to be exceptional methods).

Article 18/3 of the Intelligence and Safety Services Act of 30 November 1998 lays down that the disclosure of identification and localisation data can only be executed after a written and reasoned decision of the Director-General and after notification of this decision to the Administrative Commission supervising the specific and exceptional methods for collecting data by the intelligence and safety services.

Article 18/8, §1 of the Intelligence and Safety Services Act of 30 November 1998 lays down that the electronic communications operators have to provide data allowing the tracking of call identification data and locating the origin or the destination of the means of electronic communication. The Royal Decree on cooperation duty following intelligence service actions, mentioned above, lays down the details of these requirements, i.e. this communication of data needs to be done by the Coordination Cell of Justice.

NATIONAL SECURITY AND EMERGENCY POWERS

ELECTRONIC COMMUNICATIONS ACT 2005

Under Article 4 of the Electronic Communications Act, the King can fully or partially prohibit the provision of electronic communication services in the interest of public security (after consultation within the Council of Ministers).

CIVIL CONTINGENCES ACT 2007

Under the Civil Contingencies Act of 15 May 2007, the government is given broad powers for a limited period of time during civil emergencies, which could in theory extend to a range of actions in relation to Vodafone’s network and/or customer’s communications data in Belgium.

For instance, Article 181 of the Civil Contingencies Act lays down that the Ministers competent for internal affairs or their delegates may seize everyone and/or everything in the framework of interventions for missions of civil contingency (rescue missions, etc.), if there are no public services available. In theory, this could also include the communications data and/or network of Vodafone.

OVERSIGHT OF THE USE OF THESE POWERS

With regards to the interception measures ordered by the examining magistrate pursuant to the Criminal Code Procedure, the person whose communications have been intercepted can argue that the interception was illegal. He can do this before a pre-trial chamber (“Chambre du conseil/ Raadkamer”), during the pre-sentence stage (before the case is treated on the merits). He can also do this during the treatment of the case on the merits before the Criminal Court, before the Court of Appeal or eventually before the Court of Cassation.

With regards to the interception executed by the intelligence and safety services act of 30 November 1998, there is administrative oversight. Article 18/10, § 6 of the Intelligence and Safety Services Act of 30 November 1998 outlines that, at any time, the members of the Commission can exercise control on the legality of the measures (including the principles of proportionality and subsidiarity). In order to exercise this control, they can go to places where the intercepted data are received or registered. They can request all useful documents and they can interrogate members of the intelligence services. If the Commission concludes that the threat(s) present at the origin of the interception measure no longer exist(s) or that the measure is no longer useful, it ends the interception measure (or suspends it in case of illegalities).

If the Commission concludes that the data are being obtained under illegal conditions, they are kept under the supervision of the Commission (after advice of another Commission, i.e. the Commission on the protection of the privacy (“Privacy Commission”)). The Commission prohibits the use of the illegally obtained data and suspends the measure if it is still in place.

Pursuant to Article 43/2 of the Intelligence and Safety Services Act of 30 November 1998 the so-called “Vast Comité I/Comité Permanent R” (“Vast Comité I”) is charged with the a posteriori control on the interception measures (i.e. the legality and the respect for the principles of proportionality and subsidiarity of the decisions in order to execute the interception measures and of the methods used). If the Vast Comité I concludes that the measure is illegal, it orders all data obtained through the measure to be destroyed and prohibits any exploitation of these data. There is no appeal possible against the decisions of the Vast Comité I.

Regarding the disclosure of communications data, pursuant to the Criminal Code Procedure, the persons whose communications data have been disclosed can argue that disclosure was illegal. He can do this before the pre-trial chamber (“Chambre du conseil/Raadkamer”), during the pre-sentence stage (before the case is treated on the merits). He can also do this during the treatment of the case on the merits, before the Criminal Court, before the Court of Appeal or, eventually, before the Court of Cassation.

With regards to the disclosure of metadata executed by the Intelligence and Safety Services act of 30 November 1998, there is administrative oversight. Pursuant to article 18/3, § 2 at the end of every month, a list of executed measures (among which the disclosure measures) is sent to the Commission. At any time the members of the Commission can exercise control on the lawfulness of the measures (including the principles of proportionality and subsidiarity). In order to exercise this control, they can go to those places where the disclosed data are received or registered. They can request all useful documents and they can interrogate members of the intelligence service. If the Commission concludes that the data is being obtained under unlawful conditions, such data may be kept under the supervision of the Commission after taking advice from the Commission on the Protection of Privacy (“Privacy Commission”). The Commission prohibits the use of the illegally obtained data and suspends the measures if they still are in place.

Under the Electronic Communications Act 2005, any Royal Decree can be challenged before the Council of State. The Council of State can then decide to confirm or repeal the Royal Decree.

There is no judicial oversight of the use of powers under the Civil Contingences Act 2007.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

ELECTRONIC COMMUNICATIONS ACT

Under Article 4 of the Electronic Communications Act the King of Belgium can fully or partially prohibit the provision of electronic communication services in the interest of public security after consultation within Belgium’s Council of Ministers. Such a Royal Decree could order the shut-down of Vodafone’s entire network or some of its services.

BLOCKING OF URLS & IP ADDRESSES

A judge can order Vodafone to block IP addresses and/or ranges of IP addresses, if it appears that illegal material is being transmitted through the IP-addresses it manages.

ACT OF 11 MARCH 2003

Chapter VI of the Act of 11 March 2003 on legal aspects of information society services lays down that the competent judicial authorities may require internet service providers to terminate or prevent certain infringements consisting in the transmission of illegal material. This Chapter is a transposition of the Directive 2000/31/EC on electronic commerce, and more specifically its section 4 on liability of intermediary service providers. For instance, Article 86ter, § 1 of the Copyright Act of 30 June 1994 grants the judge (commercial court) the competence to issue a court order with a view of stopping an infringement (i.e. transmission of material violating copy right legislation). This court order also may be addressed to intermediary entities whose services are being used for committing infringements on copyright law (i.e. internet service providers).

POWER TO TAKE CONTROL OF VODAFONE’S NETWORK

The government does not have legal authority to take control of Vodafone’s network.

OVERSIGHT OF THE USE OF POWERS

ELECTRONIC COMMUNICATIONS ACT

Any Royal Decree by the King can be challenged before the Council of State. The Council of State can then decide to confirm or repeal the Royal Decree.

ACT OF 11 MARCH 2003

Any court order will be subject to judicial oversight at the time it is requested. If made, a court order may be subject to an appeal before the Court of Appeal. The judgement of the Court of Appeal may be subject to further appeal before the Court of Cassation.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.

Social

Follow us on Twitter @IndustryDialog