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Netherlands: Referendum to Be Held on Surveillance Law

(Nov. 17, 2017) On November 1, 2017, the Electoral Council (Kiesraad) of the Netherlands publicly announced that, based on the more than 384,000 valid signatures received requesting it, a referendum on the Act on Intelligence and Security Services will be held within six months. (Press Release, Referendum over Wiv gaat door [Referendum on Wiv Coming Along], Kiesraad website (Nov. 1, 2017); Kenneth Hall, Netherlands to Hold Referendum on Surveillance Law, PAPER CHASE (Nov. 1, 2017).) Reportedly, “the vote is likely to coincide with municipal elections next year on March 21.” (Hall, supra.)

The Consultative Referendum Act sets a threshold of 300,000 signatures as necessary for holding a public vote.  (Wet van 30 september 2014, houdende regels inzake het raadgevend referendum (Wet raadgevend referendum) [Act of 30 September 2014, Concerning Rules for the Consultative Referendum (Consultative Referendum Act] (as last amended effective Apr. 1, 2017), art. 2, OVERHEID.NL.)  Since the Consultative Referendum Act came into force in 2015, it has become possible for almost all parliamentary laws and approved treaties to be put to a referendum. (Referendum over Wiv gaat door, supra.)  According to the Electoral Council, this is the second time that both the introductory phase (with at least 10,000 valid requests) and the final phase (with at least 300,000 valid requests) for holding a referendum has been reached.  The first time was the referendum on a partnership agreement with Ukraine.  (Id.) The outcome of a referendum is only an advisory verdict for rejection of a law, however, if the majority votes in favor of rejection with at least 30% of the total number of eligible voters taking part. (Consultative Referendum Act, art. 3.)

The Dutch Senate adopted the new Act on Intelligence and Security Services (Wet op de inlichtingen- en veiligheidsdiensten, Wiv), in 172 articles, on July 26, 2017, “after years of debate and criticism from both the country’s constitutional courts and online privacy advocates.” (Bart Meijer, Dutch Pass ‘Tapping’ Law, Intelligence Agencies May Gather Data en Masse, REUTERS (July 11, 2017); Wet van 26 juli 2017, houdende regels met betrekking tot de inlichtingen- en veiligheidsdiensten alsmede wijziging van enkele wetten (Wet op de inlichtingen- en veiligheidsdiensten 2017) [Act of 26 July 2017, Containing Rules on Intelligence and Security Services and Amendment of Some Other Laws (Intelligence and Security Services Act 2017)], STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN [GOVERNMENT GAZETTE OF THE KINGDOM OF THE NETHERLANDS] (STB.) No. 317 (Aug. 17, 2017).)

The new Act is intended to replace the 2002 Act on Information and Security Services Act, laying down new rules on: “the duties and powers of intelligence and security services in the field of national security, the coordination of the performance of these services, the processing of data by these services, national and international cooperation in these services, [and] the exercise of supervision and treatment of complaints and confidentiality, … .” (Id. Preamble.)  Certain portions of the new Act, including articles 1, 32 paragraph 1, 33, 34, 35, 97 paragraphs 1 and 2, 98, 99, 100, 101, 103, 104, 105, 106, and 170, entered into force on September 1, 2017.  (Besluit van 19 augustus 2017 tot vaststelling van het tijdstip van inwerkingtreding van enkele onderdelen van de Wet op de inlichtingen- en veiligheidsdiensten 2017 [Decision of 19 August 2017 Determining the Date of Entry into Force of Some Parts of the Intelligence and Security Services Act 2017], STB. No. 318 (Aug. 25, 2017).)

Although the 2017 Act was passed “with broad support,” the rights group Bits of Freedom reportedly cautioned that “the Netherlands’ military and civil intelligence agencies will now have the opportunity to tap large quantities of internet data traffic, without needing to give clear reasons and with limited oversight” and expressed opposition to the Act’s “three-year term for storage of data that agencies deem relevant, and the possibility for them [the agencies] to exchange information they cull with foreign counterparts.” (Meijer, supra.)  Government officials contend, however, that the augmented powers “are needed to counter threats to national security in the modern era, and their use can be tested by an oversight panel.”  (Id.)