Five percent of permissions for Wiv powers were unlawful

In the past year, the AIVD and MIVD have wrongly received permission from the minister in about five percent of the cases to wiretap traffic or hack computer systems. This is what the Assessment Committee for Deployment of Powers writes in its annual report.

The TIB monitors compliance with the Wiv, the Intelligence and Security Services Act. The committee presented its annual report on Thursday, almost a year after the controversial law came into effect. During that time, 2159 requests from both the AIVD and the MIVD were tested. In 4.5 percent of the assessed requests from the AIVD and in 5.8 percent of the MIVD, permission was unlawfully granted by the Ministers of the Interior and Defense respectively.

In most cases, unlawful consent concerned disproportionate requests or requests that were poorly substantiated, the TIB writes. For example, one case involved a bulk hack where the intelligence agencies wanted to penetrate a company to get the data of millions of people. The TIB does not say which company it was exactly, but it does say that the threshold of ‘weighty operational interests’ was not reached in this case.

The TIB usually checks in advance whether the intelligence services apply a power lawfully. In some cases, however, this happens afterwards, if it concerns an urgent procedure. The AIVD used such an emergency procedure in just over three percent of the cases. Of all those times, the regulator concludes that 11.6 percent involved an unlawful action. In one specific case, the information even had to be destroyed immediately. At the MIVD, an emergency procedure was in no case illegal.

The Intelligence and Security Services Act came into force on 1 May 2018. The lead up to it was controversial; privacy activists and other critics objected to the expansion of intelligence agencies’ powers. The so-called ‘drag net’ in particular was a pain point. This enables the AIVD and MIVD to collect data on a large scale. After a referendum, the government amended the legal text slightly to, among other things, adjust the retention period of data.