Legal interception

Relevant companies

Companies that are subject to obligations in this matter are not limited to telecom operators within the meaning of Article 2, 11°, of the Telecom Act, given the operational needs of the relevant authorities, and in particular the judicial authorities and the intelligence and security services. Each legal provision must be examined separately to determine its own scope. The BIPT does not pronounce itself on the scope of the Code of Criminal Procedure nor of the Organisation Act of 30 November 1998 of the intelligence and security services.

Obligations

Article 9, § 7, of the Telecom Act contains obligations of principle for providers of private electronic communications networks or electronic communications services which are not publicly accessible, which are not operators within the meaning of the Telecom Act. However, to this day, this Article has not been executed yet.

From BIPT’s point of view, the operators’ main obligations regarding legal interception are the following: 

• Identifying its customers, including if they use prepaid cards (see the FAQ on this subject in this website);
• Retention of identification data and of traffic and location data;
• Providing, based on indictments, data to relevant authorities and participating in the IT project of NTSU-CTIF concerning the centralisation and the automation of requests and answers (“Tank”);
• Providing BIPT with statistics on the requests of these authorities regarding the data retained pursuant to Article 126 of the Telecom Act;
• Creating the coordination cell, which seeks to facilitate the provision by the operator of data to the requesting authority.

BIPT created a website (the unified notification platform) to make it easier for the competent authorities to access the contact details of the members of the coordination cell.

Monitoring and sanctions

The BIPT is responsible for monitoring compliance with the legislation (see “Legal framework”), with the exception of the Code of Criminal Procedure and the Organisation Act of 30 November 1998 of the intelligence and security services.

As the provisions monitored by BIPT are subject to criminal sanctions, infringements to this legislation will be in principle established by (BIPT) investigating officers, and the infringement procedure will be implemented either by the BIPT Council or the public prosecutor.

Legal framework

Concerning the identification by operators of their end-users

• Article 127 of the Telecom Act;
• The Royal Decree of 27 November 2016 on the identification of the end-user of mobile public electronic communications services provided by means of a prepaid card; Article 19 of this Royal decree was implemented by the Royal Decree of 24 February 2017 regarding the appointment of the police service referred to in Article 19, §1, subparagraph 2, 2°, of the Royal Decree of 27 November 2016 and by a set of Ministerial Orders(see the “legal interception” section on this page).

Regarding the retention of identification data and metadata by operators

• Articles 2, 74° ; 126 and 126/1 of the Telecom Act;
• The Royal Decree of 19 September 2013 implementing Article 126;
• The Royal Decree of 11 January 2018 regarding the appointment of the police service referred to in Article 126, § 2, 5°, of the Act of 13 June 2005 on electronic communications

Concerning the operators’ collaboration with the judicial authorities and the intelligence and security services

• Articles 46bis, 88bis and 90ter and quater of the Code of Criminal Procedure;
• Articles 18/7, 18/8, 18/17 of the Organisation Act of 30 November 1998 of the intelligence and security services;
• The Royal Decree of 12 October 2010 determining the conditions of the legal collaboration obligation in case of judicial requests on electronic communications by the intelligence and security services (implementation of the Telecom Act and of the Organisation Act of 30 November 1998 of the intelligence and security services);
• The Royal Decree of 9 January 2003 determining the conditions of the legal collaboration obligation in case of judicial requests on electronic communications by the intelligence and security services (implementation of the Telecom Act and of the Code of Criminal Procedure)
• The Ministerial Order of 9 July 2020 implementing Article 6, § 3, subparagraph 2, and Article 10bis, subparagraph 2, of the Royal Decree of 9 January 2003 laying down the terms and conditions of the legal collaboration obligation in case of judicial requests regarding electronic communications
• The Ministerial Order of 16 July 2020 implementing Article 6, subparagraph 2, and Article 8, § 3, subparagraph 3, of the Royal Decree of 12 October 2010 determining the conditions of the legal collaboration obligation in case of judicial requests on electronic communications by the intelligence and security services