Proposition 53K2921

Projet de loi portant modification des articles 2, 126 et 145 de la loi du 13 juin 2005 relative aux communications électroniques et de l'article 90decies du Code d'instruction criminelle.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

June 27, 2013

Official page

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Status

Adopted

Requirement

Simple

Subjects

protection of privacy electronic mail data protection Internet mobile phone personal data Internet access provider telecommunications telephone transmission network

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR VB

Voted to reject

Groen Ecolo ∉ N-VA LDD

Party dissidents ¶

• Bernard Clerfayt (MR) voted to reject.
• Peter Luykx (CD&V) voted to reject.
• Olivier Maingain (MR) voted to reject.
• Damien Thiéry (MR) voted to reject.

Contact form ¶

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Discussion ¶

July 16, 2013 | Plenary session (Chamber of representatives)

Full source

Mrs De Bue, rapporteur, refers to her written report.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. The log of phone calls, text messages and e-mails sent or received must be kept. It is open to Justice and State Security on request. Of course, I do not need to point out the dangers to privacy.

Just look at the stories about Edward Snowden. He has clearly illustrated how by occasional contact one can be linked very quickly to things to which one does not want to be linked at all. Suppose, for example, that a cabinet employee of the minister receives a phone call from someone who is followed by the State Security or someone who has some dark practices on his chest. Well, that employee will soon end up on the list of persons to be followed.

Fortunately, Belgium is not the United States. This is not about the bulk transfer of data from logbooks to intelligence services; here it is, fortunately, about targeted questions. However, caution is still required.

This is, by the way, the transposition of a European directive and it will ⁇ remain useful if it can resolve problems. The balance between security and privacy is very delicate and ⁇ not a black-and-white story, because privacy is one of the fundamental rights and freedoms of man.

The draft law will have no impact on the really heavy criminals. Organized criminals will not be able to deal with this, because they simply use encryption and their own server. However, if we can tackle smaller criminals and insurgents with this, everything can be defended in a very nuanced way.

The question is, of course, how and how we deal with this. How do we conduct the debate? The way you hit the chest. This is a European Directive from 2006, seven years ago. The first draft law was ready in 2008, but now it has to go suddenly fast and is being pursued with urgency by Parliament. A single meeting of a few hours was dedicated to it.

The actual content of the whole story is not in the bill itself, but in the royal decree on the subject, which can be easily adjusted and that could only be examined at the time of the assembly itself. This is not really serious work, colleagues, all but even! It is actually an allegation of the Parliament’s role as a reflection room of democracy.

The opinion of the Justice Committee on such an intrusive bill that interferes with fundamental human rights and freedoms is, according to the government, not necessary at all. It had to be hunted on a draft and that seems to me anything but healthy.

If one pursues such a thing very quickly, of course, there are a lot of questions afterwards. Mr. Minister, I would like to take this opportunity to ask a few additional questions. I hope you listen attentively and prepare an interesting answer.

As you stated in the committee, data should only be stored and disclosed at the request of the Justice and the intelligence services if you already have it in your possession, if you keep it for your own organization, for example for billing. So it’s not about cafes that have a regular hotspot. Please correct me if I am wrong, but if the payment is made with Visa or Mastercard, the payment provider may not save the credit card number. This is obvious, because otherwise all sorts of things can happen with it. If you subsequently further refine and apply the KB, I assume that retaining data will therefore surely and firmly not save on the credit card number, because otherwise you will create a giant honeypot for potential attackers. That would of course be too crazy.

Furthermore, the draft law allows a number of schemer zones. A hosting company that offers email services is listed below. Well-known examples are Windows Live and Gmail. If one offers that as a hosting company and anyone can create an email address with you, then one falls under it. A private server, of course, does not fall under this, because it does not offer services to others. But what if a hosting company offers services on a dedicated virtual private server for any organization? It could then be a legitimate organization, such as n-va.be, or a less friendly organization such as Sharia4Belgium. The hosting company manages that server only and only for that private organization. Should it then store all the traffic – or at least the sender and the recipient – and transfer it to the Judiciary? I would have liked to get an answer.

The great danger of this law is, as I have already said, not so much the bill itself but the royal decree and the freedoms that are given to the King – or the minister, if you wish – here. First of all, you can use KB to determine which data should be stored. In the near future, after the adoption of this law, a decision may be issued determining which data should be stored further, without debate in Parliament. The retention period can be adjusted within two years, permanently. Even worse, temporary measures can be taken. Temporarily, one may decide to store additional data for a longer period. You know how stretchy the term “temporary” is.

I therefore think that it is completely irresponsible to give such powers to the King, to the government, to the executive power, without a broad debate. If necessary, we want to participate in this. Exceptional situations require exceptional quick solutions. However, there is not even a post-ratifying of the royal decrees. There is simply no democratic debate about undermining our fundamental rights and freedoms.

I am not alone with this criticism. The Privacy Committee also points out in its Note 32 that the European Directive explicitly states that the data to be retained is defined in the Directive and not in an appendix to be quickly amended. Therefore, it seems to me very strange that here we are just doing the opposite of what the European Commission is doing, and that we are going to define data to be kept through a rapidly modified KB, and not in the law itself. That is another step too far.

Also in terms of term, the design illustrates a typical Belgian pain point. I received an evaluation report from the European Commission. It states that, as a judicial authority in the other Member States of the European Union, it requests data on the log, e-mail traffic, SMS traffic or cell traffic of a potential criminal, which data in 90 % of cases is up to six months old. In our country it is only 67%, as you ⁇ . Only 67% of the data is less than six months. For this reason, we are now going to choose a period of twelve months instead of six months, the minimum imposed by the European Commission, while those six months should actually be sufficient.

We choose a longer term because Justice at us works much less quickly and efficiently than abroad. Some Member States spontaneously opt for a slightly longer period, but for us it appears to be a bitter necessity. Apparently it is necessary for us to further improve the fundamental rights and freedoms of our citizens because the Justice Department is not working sufficiently. How many times do we need to enter that open door? How long will we tolerate that we undermine these fundamental rights and freedoms instead of addressing the problem at the root, in the procedures of the Justice?

In addition, the supervision seems to me seriously insufficient in the whole design. There is only an evaluation after two years. There will be a debate here in Parliament. A more regular reporting seems to me a minimum minimum.

The conclusion is clear to us. This is hurry work that creates uncertainty and also goes a lot too far. I look forward to your answers, Mr. Minister, but on the basis of what is now revealed, our group will surely vote against. This is not really a serious job. This opens the doors for an unfettered invasion of our privacy. Not temporarily, but far beyond reasonable.

Mr. Speaker, Mr. Ministers, Mr. Colleagues, I think that there can be no talk here of hurry work, since this draft has been prepared for several years. I regret, together with you, Mr. Dedecker, that when the government takes a few years of time, the Parliament has only very little time to discuss it and to take note of all implementing decisions. You definitely have a point there. Belgium, however, threatens to be condemned by the European Commission, so I also find it not immediately responsible to raise the draft again over the reces.

The proposed draft requires the establishment of a database by telecom operators. Some have the misconception that additional items will be stored, but one cannot store more than one already held in the context of business operation.

It will be possible to consult where we have been and with whom we have telephoned or emailed. I would like to immediately express my great concern. We could also say that nothing about the content should be stored, but we should also not be naive. We know that the provider can have access to the SMS traffic and that some messages are stored by default. It is also not clear whether the mail traffic operator keeps the subject line or part of the text. Some of us know that. For example, Gmail states in the terms that it can be stored systematically and that it can be actively searched in the database. It is not all so innocent.

However, we should also not shout murder and fire. This design will not suddenly significantly limit privacy. On the contrary, categories are listed in view of the main objectives, namely serving justice and having additional tools to combat or clarify crimes.

Even without the Data Retention Directive, for the purposes of normal business operation and the development of the commercial strategy, a lot of data is already stored. It would be good for operators to communicate about this openly and transparently, and not just by giving the user access to what is stored. In the committee, I suggested that a model file would be provided for this purpose. After all, it is important to be able to consult everything and it should also be clear to what extent the stored data will serve.

During the discussion of this design there was a lot of discussion about the storage period. It is not because one found out at twelve months that after twelve months everything is simply destroyed. This remains the responsibility of the service provider.

The announced transposition of the Data Retention Directive received the Big Brother Award in 2010, but we must also look at what is already happening in the field of data storage in addition to the application of that Directive. It is important for politics to give people an understanding of this. We must be very careful with this legislation. There are examples in Germany, Romania and the Czech Republic, where the Constitutional Court has already destroyed parts of the conversion. It is not an obvious matter.

It was therefore a matter of wheels and roads to get to the correct and correct conversion. The goal is, of course, that the measure can combat crime. Criminals using electronic communications and leaving digital footprints provide the opportunity for more efficient, active detection. This can mean something for the victims of a crime.

I do not know what is going on with the Minister. It looks like the government has fallen. (Minister De Coninck is sitting on the stairs.)

She, like the opposition, thinks it is boring here. The [...]

Mr. Calvo, your shirt reminds me of my first campaign shirt.

It is also important to note that the directive was adopted after the terrorist attacks in London and Madrid. However, the database will not, of course, be consulted only in the context of counter-terrorism. The prosecutors will also be able to collect data on suspicions of any crime. It is of course very important that we ensure that proportionality is respected.

The Ombudsman Service will also have access to the data in the database. I also find that accountability is appropriate, although it is not included in the transposition of the Directive. The Government did not intend to impose an excessive legal burden on the Ombudsman’s service. Nevertheless, it is important that we keep an eye on who requests the data and who consults it.

In that regard, it is my personal opinion that too little work has been done — this is naturally explained by the budgetary restrictions — of a log-in system, which allows to see who has actively queried the database, which was set up for Justice, and also for which file. I will give some examples from the past. When a former prime minister was in the hospital, there was a very active questioning of his patient file. Even when singer Yasmine died, we noticed that a lot of information was snapped into police databases. There are many examples to be cited. It is of course the people. After all, people tend to consult data from a certain curiosity.

When we allow access for individuals, it is not obvious that when a family-level subscription is subscribed, a person has immediate access to certain telecommunications payments of his/her family members. I would like to illustrate that this is a very nuanced discussion.

Our group has regularly addressed the issue of information security and data breaches. Since the dossier-Snowden and the dossier-Manning, everyone is familiar with the impact of data leaks. Such leaks are the reason why such a database requires a clear legal framework that sets out which data should be retained, but also who has access to the database and how operators should secure the database.

Ladies and gentlemen, do not be mistaken. It is not correct that the present draft law presupposes one uniform standard. It defines a number of categories and parameters. However, it is free for operators to give their own definitions.

I personally prefer a more unified system with some good encryption mechanisms, where more supervision of the different databases is possible.

This, of course, has a cost, for any development. It will not be free. Already in 2009, a former minister in charge of telecommunications announced an estimate of the costs. It would take years before that study started, but strangely enough, the results of that study are still not there.

Some stakeholder representatives even say that internet and telephony prices would rise by as much as 25%, precisely due to the implementation of that database. Personally, it seems to me that excessively, rather the data is distilled from what is already stored for billing and for commercial purposes.

We talked about 100 million euros. You are also paid for the fees and performance for searching in the databases, but it would not be unreasonable in the long run, and ⁇ after an evaluation, to look at where the government can invest, precisely to work out the re-framework mechanism a little stronger.

The transition has been waiting for a long time. The implementation will therefore have to be closely monitored by the Parliament, the Privacy Committee and ⁇ by the telecom regulator BIPT.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. I have made comments on this because that is not a serious way to deal with such an important legislation.

You will, of course, apologize, say that you have received warnings from Europe and that you absolutely want to avoid being convicted. You will refer to Sweden, where fines have already been imposed. This, however, is not an excuse to hunt texts with a rot through Parliament, especially since there are many problems in this text and more so because the translation has not been done correctly. On that I will come back later.

The problem is fundamental, Mr. Minister. Why did it actually take so long? We have already held a fundamental debate in Parliament, House and Senate together, in 2010, with the two committees for Justice. At the time, Senator Hugo Vandenberghe was also a part of it. So you can imagine that it was a rather fundamental discussion and that the European Court of Human Rights also returned to the three sentences. It was a very important debate.

What happened to this discussion, Mr. Minister? At that time, the majority and the government decided not to proceed with the transposition of that directive because in several European countries problems with the Constitutional Court had arisen. The Constitutional Court had fundamental objections to the transposition of the Directive into national law. Then the European Commission predicted – that we cannot blame the Belgian government – that an evaluation would take place, but ultimately it did not come. Many countries have waited for this review and a possible amendment of the directive in order to transpose the directive.

In the meantime, several other countries have already failed. I think the European Commission takes a very strange stance. There is a discrepancy. On the one hand, we can see that the European Commission gives the impression of evaluating the legislative texts equally thoroughly, after protests came from various countries and constitutional courts, on the other hand, those countries are pressured to continue with the transposition at any rate.

The same discrepancy is also found when one looks at, on the one hand, the individual attitudes of the Member States and, on the other hand, the attitudes of the European Commission. In many Member States, this Directive and its transposition are ⁇ critical. At the European level, the Commission will continue. Does the Commission not listen to the individual Member States, to the concerns expressed by the national parliaments and to the national constitutional courts? Apparently not. This again shows that there is a democratic deficit in certain points.

Europe has an agenda: there was 9/11, we must impose that legislation and it must be pursued by it. The countries are going to struggle, that is clear. Europe has determined that the data should be kept for a period of six months to two years. This government chooses for twelve months, while the minimum is six months and the government could have chosen. According to an evaluation report at the European level, 90 % of cases require information not older than six months for the judiciary in the European countries. If 90% of the information is not older than six months, I wonder why one should absolutely choose twelve months.

Justice needs to work a little better. If investigative judges and prosecutors know that the law requires that investigations or requests for data take place within six months, I believe they will work faster. If the Court of Justice were to be advised on the period for which data should be retained, the answer would be: as long as the limitation period. With the suspension and shutdown, we are thirty years on. If it’s up to them, they’ll have thirty years to ask for information, they’d still see a trail. We do not join in that. Six months is enough. We are opposed to those twelve months and have drawn up and submitted amendments in that regard.

Look at the content of the text. A non-differentiated storage obligation is introduced for 450 million people in the European Union. From everyone who calls, textes or mails, the data is tracked: not the content, but who when calls, textes or mails. Everybody is arrested, everybody is suspected. Where is the presumption of innocence? Everyone becomes a potential criminal. People wonder what the absolute necessity of such a drastic measure is, but there is hardly any answer to it.

There are also problems with implementation. I refer to a number of provisions stating that a number of matters will be settled by royal decree. The basic KB we received at the meeting at the banks and can be checked. However, the law also stipulates that the government may, by royal decision, delay the deadlines. Initially, it is already chosen for twelve months, but actually the government wants to retain the possibility to keep the data for longer than twelve months. There is even explicit reference to eighteen-month terms. If the period exceeds 24 months, the Commission must be informed. This can be decided, not by law, but by royal decree. We strongly oppose this and have submitted an amendment to make it impossible.

Mr. Minister, colleagues, there is another fundamental problem with regard to the application of this legislation. Not only the prosecutor will have access to the data, not only the investigative judge, but also the security services: the State Security, the DVIS, the military security services.

I wonder on what basis the government has decided to give the State Security access to this data. What is stated in the European Directive? Article 1 of the Directive, entitled ‘Subject and scope’, clearly states that measures should be taken to ensure that the data can be used for the investigation, detection and prosecution of serious criminal offences as defined in the national legislation of the country. It is about the detection of crime.

Mr. Minister, you know it as well as I do: the task of the State Security is not to detect crime, but to gather intelligence. The extension of the scope to the security services goes far beyond what the Directive has imposed and further violates the rights of citizens. It goes too far and actually breaches the directive itself. In that sense, therefore, we have submitted an amendment to exclude the State Security and the military security services from the application of this legislation. It was not the intention of Europe to have access to this data. We should not allow this in Belgium.

In addition, we also submit amendments regarding the way in which the data can be requested. We conducted that discussion. The law says that a simple question is enough. Mr. Minister, it was a little improvisation in the committee of yours to answer what is now exactly a simple question. I am satisfied with the investigative judge and the prosecutor’s office. They still work with pen and paper; the computerization has not yet penetrated. They will ask with pen and paper.

The security of the state, however, is not; I am not reassured in that. If you include “on simple question” in the law, you can simply take the phone, send an e-mail, or send a text message. They will be kept for 12 months. It does not have to be on paper. I find that dangerous. I think it is essential that a request for information by an institution is made in writing and that the request is motivated. In that sense, we have also submitted an amendment to avoid that a request for information will be accepted in any other way, and that there could never be a trace of it.

Finally, I have a question about the penalty. This was also discussed in the committee. You immediately referred to European jurisprudence to counter it, but the law is quite clear. The penalty clause determines who can be punished. “He who, knowing that the data was obtained by committing a crime, keeps the data with him, discloses it to another person, distributes it, or makes any other use of it.”

This is typically the description of what an investigative journalist does. He gets data. Those data may have been obtained illegally by someone, but the journalist who receives the data, writes an article about it and publishes that article on a website, can be prosecuted on the basis of that provision.

You might say that I don’t have to worry, because the European Court of Human Rights does not accept that journalists are prosecuted in those cases. That may be best and I know that jurisprudence, too, but if you know that jurisprudence, then you must make sure that you do not write laws that are in conflict with that jurisprudence. The current law allows that.

I am also not reassured. There are plenty of examples of prosecutors who have prosecuted journalists because they have data from a criminal file. In this way, the prosecutors want to exercise pressure to know the source. That is the reality in our country. Just two to three years ago, such a case occurred in Dendermonde, of which I can give you the data. So I am not sure that the current law will not be used against investigative journalists in our country.

I think this is once again an illustration of the amateurist and light-sensitive way in which this government transposes directives that interfere very far in the private life of citizens. This is a dangerous law, Mr. Minister.

Mr. Speaker, Mr. Minister, colleagues, that a government should do its utmost to catch criminals and use the tools necessary for this, such as monitoring of gsm and e-mail traffic, it seems logical to us.

An honest citizen would say that he has nothing to hide and therefore, in principle, one will never get a nose in his e-mails and text messages, since he remains on the right path.

However, the way in which the draft is driven by Parliament raises serious questions, even more because it is an essential aspect of our society, to which many Flammers are very sensitive, in particular our privacy.

Mr. Minister, the way you pursue the draft law by the Parliament and how you complete that law exactly is regrettable.

In itself it is logical that certain e-mail and SMS traffic is already registered by the telecom operators. If the Court of Justice wishes to use it in connection with certain criminal offences or certain investigative acts, it may request it. However, we question how. In fact, mainly royal decrees will be worked out, and no consultation has taken place with the Committee for Justice, while the real criminals, whom one wants to catch, I think will remain out of shoot.

As for the urgency, we are talking here about European directives dating from 2002 and 2006. It’s now 2013, so it’s not all credible.

In the past, including in 2010, the necessary discussions have already taken place. In the meantime, we are three years ahead and the big argument is that we risk a heavy penalty from Europe.

What I did not hear in the committee is how much one is going to talk with Europe. Has anyone knocked on Europe to say that we are working on it, but that we still want to postpone the execution until October?

To what extent was it a feasible map, so that, for example, the consultation with the Justice Committee could have taken place? What I have heard is that in the Committee for Justice there was no intention of shifting things on the long track. They also wanted to act quickly. It could also be voted today.

But no, even CD&V, who, however, from the committee for Justice informed the committee’s involvement, did not go beyond a brave abstinence in the committee for Justice. Even CD&V-confrater Van den Bergh supported the majority’s position to immediately give full gas and discuss the bill last week.

So far, the collegiality of the CD&V colleagues with the Committee for Justice.

If we look at the text, it is actually about the Telecommunications Act. The application and the fruits that one hopefully can reap from this law will take place mainly within the jurisdiction of Justice. Therefore, Mr. Minister, I regret in the first place that you failed to show flexibility or that the members of the majority did not use their common sense to involve the Committee on Justice. I think it is a missed opportunity.

How will this law be implemented concretely? Again, we give a blank cheque to the government, through a number of KBs, to key that law, modify or update it, and to implement it at its discretion. I don’t think that’s a good thing when it comes to privacy, which, as MEPs, should be very important to us. They don’t just throw it out. This is not to be left in the hands of a minister who should take care of it. I think it’s important that Parliament can monitor that, and that’s not what is happening here.

Therefore, I consider it a good proposal by the N-VA to insist that all those KBs still be submitted to Parliament. It is, of course, post factum and I have little illusions that this KB will be approved here by the plenary session. Mr. Minister, I don’t think it’s good that all this goes through the hands of the Council of Ministers, and later through that of King Philip. I think our privacy is more valuable than a few KB’s.

As for the target, the mosquito we are targeting with our cannon, we may wonder if the data retention law will help us much further in the fight against real criminals. I fear it. In 2011, it was revealed that 849 text messages were sent by Yves Leterme to a certain lady. They were sent from Brasov. Unfortunately, the SMS was two years old. Therefore, the data retention law would not have brought much solace in this regard. The deadline is only 12 months. I do not think that was the intention either.

Also when it comes to the e-mail traffic of Ingrid Lieten we do not need such a data protection law. The real criminals are elsewhere. Suppose, for example, that the Security of the State would have an interest in the email traffic of Johan Vande Lanotte, the then student who was active with the Anarchist Collective. There could be interest in that. Unfortunately, there was no SMS or email traffic. However, it is clear that real criminals are much wiser and that they use anonymous or own email servers. I think this is a step too far, if I see how much of our privacy we sacrifice here or throw away.

Mr. Minister, I wonder why you like this. On the one hand, you are the slowest student in the class, because we are talking about a directive from 2006 and 2002. Now it is 2013. In fact, an evaluation is already underway, followed by a new data retention directive. Now you want to be the fastest student by asserting that we immediately opt for a 12-month term. However, the practice or facts do not prevent you from claiming that we limit ourselves to a period of six months. However, I think it would be a good principle to use a six-month period. That should be enough to allow the judiciary to do its job. In the committee you have not demonstrated why that twelve-month period is so much better or healthier. I think that this Justice should just encourage it to work quickly and efficiently. I think that our privacy deserves better than to say to Justice: “Take off your plan and sleep over it another night.”

On the other hand, I am surprised, Mr. Minister, that the Privacy Commission indicates in its opinion that it has no problem with this. The committee has a number of comments, but it can be found in the way you have poured something into a bill. That surprises me, because I find in other files that the Privacy Commission is working much stricter and is much more concerned with the privacy of the citizen. Apparently, this does not apply to the present bill.

I ⁇ don’t want to create the impression that criminals get a release letter, and via SMS and e-mail can go their way. No, they must be addressed by all possible means, but I think they will again be out of shoot. I am therefore a little surprised that, when it comes to requesting the data, you remain quite vague about how that should be done. You have given some oral explanations in the committee, but also there you have, in my opinion, failed to formally state this in the legislative text. It would have been much better if you had specified how and in what cases that data could be requested. It cannot be that mere interest is enough to look into the data.

Finally, Mr. Minister, there is a report to the Parliament. In my opinion, however, that reporting remains too non-binding and you should have specified that reporting in the legislative text. When I look at the method of reporting to the Committee I and the Committee P, I think that data is ⁇ much more carefully and clearly. In addition, there is also a certain secrecy.

You may also care about your privacy. You may not like that all kinds of data end up in a book. Think of others who are concerned about this.

I would like to answer with a few facts. Without going too deeply into all sorts of legal discussions, I would like to draw the political facts more generally.

First of all, it is true that the Chamber Justice Committee of the House several years ago, together with the Senate Committee, organized a large debate, of which I can only assert that the debate did not lead to conclusions, except the decision to wait a little longer, because there was still a lot of uncertainty. As a result, we are facing an urgent situation today. The debate at the time may have been high-level, for me the result was mainly that we did not come to a solution.

Today, a country that failed to transpose the Directive, in particular Sweden, has been sentenced to 3 million euros in fines. The amount of that fine still makes some impression on me, but ⁇ not on the members of the assembly.

In addition, Belgium was dismissed by the Commission. To answer Mr Veys: Yes, we have contacted the European Commission and we have requested a delay. No, the Commission no longer believes that we will finish that final. Yes, our deadline ends at the end of July and we will finally reach that deadline now.

We didn’t go ice overnight. It is not a hurry. It is extensively prepared.

I would like to emphasize another important element: what the law does is more specification, more clarification. Everything that was possible today is limited. Everything that is possible after the approval of the legislative text could already be possible before, but without a description. Can cooperatives today keep data for five years? Yes, if the privacy law allows it and if they work to do so in the correct way. Can this information be requested by an investigative judge today? and yes. Can this be requested by the prosecutor under certain conditions? and yes. Only there is no regulation.

I asked this in the committee. I have not received a reply. Give me an example of wider possibilities. You will not find them. What we are now doing is to establish a regulation that imposes more constraints instead of expanding the possibilities.

It surprises Mr Veys, but the Privacy Commission has indeed set seven conditions. We have respected them all.

Mr Dedecker says that the Council of State imposes an obligation in this regard. The text reads: “It belongs to the legislator to regulate the conservation of data relating to telephone calls which have been unsuccessful and not to the executive power.” We have written that in the law as well. We have also responded to that.

If the period is to be extended, Parliament must undertake an evaluation within two years. You can extend a KB, but there is no blank check. First, it must be about extraordinary circumstances. The State Council and the Privacy Commission have requested that this be described. That’s what we have done in Article 4 of the Telecommunications Act, to which we have referred. The first limitation is the description. A second limitation is that the BIPT must give its advice. A third limitation is that the Privacy Commission must give its advice.

Speaking of a blank check is not correct.

Mr. Van Hecke says that I quickly gave an explanation on the simple request. No, I did not do it quickly. I quoted from the law.

Why do we oppose the obligation to do so in writing? Because in the Law on State Security it is written that the application must be made in writing, by who and how. With the approval of your amendment, which states that the application must be made in writing, you would have eased the conditions for an application rather than tightened, as the law says more than just in writing.

There was also a comment on the journalists. We are not going to say that it should not be used by journalists, because it gives the impression that the legislator can decide whether or not a fundamental right to freedom of expression should be infringed. The legislator has no power to say whether or not it should be used for journalists. That is the competence of the European Court of Justice. This is stated in the European Treaty. Laws should not be contrary to that treaty. We must not pretend that the law can guarantee that, because it is not so. If one says that the law can prohibit it, one also says that the law can allow it. We also rejected that amendment.

That being said, it is a law that we must deal with cautiously. However, I have two important comments.

First, Mr. Van Hecke points out that everyone is now suspicious. The present law will be equally used to release people from any suspicion. The fact that one can see that the communication traffic has occurred via the Internet or SMS is just as often the proof that someone is not involved in a case. It does not only serve to find people guilty; it also serves to exclude people from suspicion. As an investigative judge seeks in the advantages and disadvantages, he can use that remedy for such an investigation.

Second, I will not read it again, but I advise you to read it again in the report. In fact, I started the discussion in the committee with the scream of the judge of Dendermonde, who wondered how we could continue to discuss the issue, now that there is so much need for such legislation.

It is said that with the term of one year I want to be the best. Please do not apologize, but the one-year term is the term used in most countries. Some countries have a term of six months and some countries have a term of more than twelve months. We stayed on average for 12 months. The term is the same in France, the Netherlands, the United Kingdom and Spain, to give only those examples. We are by no means the country that is doing the most. Denmark also has a period of 12 months. We just take the average. The average that applies almost everywhere applies to us too.

Mr. Minister, I thank you for your delightful response.

We are the average. I can only dream that we would be the average in other areas as well. For example, the tax pressure.

Unfortunately, I have not received any answers to the concrete questions that have yet to be raised and which I have yet to raise, after the quick discussion in the Infrastructure Committee. That is regrettable.

It is also indicative that you do not want to engage in legal discussions.

( ... ) I do not do that anyway. Ask me, I will always answer, but never unprepared. In public meetings, I do not answer specific questions because I may be wrong. So simple is that.

I will keep you there.

You have made it clear that you are not engaging in legal discussions. Per ⁇ the plenary session is not the place to be. For this reason, a discussion in the Justice Committee was very useful. It is a pity that it was refused.

I talked about urgent work. The government has been working on this for years, but Parliament has to do it on a slump, without the advice of the Justice Committee. It is characteristic that even the former liberal party does not intervene in the Infrastructure Committee and here in the plenary session, although these are fundamental liberal freedoms. This shows how serious this debate is being carried out here!

Mr. Minister, we can actually discuss this issue for a long time. I disagree with many of your answers. You said that before everything was possible, but that now there is a legal framework for it. Until then, however, there were no telecommunications companies that kept data such as text messages and emails for a year. They all protest against the obligation to keep track of them for twelve months, because they must invest in additional equipment. If they had everything in mind, they would not have to invest in equipment now. A few may have already done it, but not all. In this sense, it is an extension.

You also said that the law should not include that this does not apply to journalists. The law does not allow this, but the Court of Justice will do so.

Have you ever read the text on the services of the State Security? You do not have to look far. Article 2 § 2 stipulates: “It is forbidden to the intelligence and security services to obtain, analyze or exploit information protected by either the professional secret of a lawyer or a doctor, or by the source secret of a journalist.”

In short, the Belgian law stipulates that the state security has certain tasks, but that they cannot be performed against journalists. You just say that the law must not stipulate that this does not apply to journalists. There is a Belgian legislation that explicitly stipulates this.

No, I have said that one should not write in the law: “This punishment is not applicable to a journalist.” That is something completely different. To effectively enumerate the whole European Treaty in a penalty clause is like you can decide on the European Treaty yourself, while you can’t.

We are not talking about criminal law, but about the law in general.

The amendment concerns the punishment. We discussed this in the committee. It was about criminalization for people who manage this data, whether they work for Proximus, BASE or other organizations, and who bring it out. That is criminal.

You said that it should be stated that this does not apply to journalists. That was your comment. There was an exception for journalists. I have said that this cannot be done, that it must not be done.

We have not submitted an amendment.

At least you asked that in the committee. This was the subject of the discussion and I have said that this should not be used there.

I have not submitted an amendment on this. I submitted other amendments.

Amendments have been submitted, among other things, on the application. You did not respond to that. Mr. Minister, the Directive explicitly stipulates that this data may only be used for the detection of criminal offences. And the government decides to apply it also to the intelligence services. Intelligence services do not detect crimes. They collect information. By adding this, however, you are carrying out a transposition that is contrary to the Directive and you are expanding its scope.

I only note that you do not respond to it, ⁇ because I did not ask the question in the committee and so it was not prepared by your services, which may well be. But this is a fundamental comment. The Directive can and should not be applied by intelligence services. The government does this. I have submitted an amendment on this. You can check it for a moment. If you agree with us, you can, together with the majority, approve the amendment so that at least in that respect the conversion is consistent.