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
Documents
- Decision of 14 January 2020 regarding the non-compliance by Proximus with the rules on the identification of end-users of prepaid cards
- Decision of 14 January 2020 regarding the non-compliance by Telenet with the rules on the identification of end-users of prepaid cards
- Statistics data retention 2018
- Decision of 24 April 2019 regarding Lycamobile’s non-observance of the legislation regarding identification of end-users of prepaid cards
- Statistics about data retention in 2017
- Non-confidential version of the decision of 15 June 2018 imposing measures provided for in Article 21 of the Act of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sectors on Lycamobile in the context of the identification of the end-users of prepaid cards
- Decision of 6 April 2018 regarding the extension of a temporary measure imposed upon Lycamobile by virtue of the decision of 30 march 2018 in the context of the identification of prepaid card end-users
- Decision of 30 March 2018 imposing temporary measures upon Lycamobile in the context of the identification of prepaid card end-users
- Prepaid card (form)
- Statistics data retention 2016
- Information Brochure about the Duty to Collaborate with the Judicial Authorities
- Statistics data retention 2014-2015
- BIPT note for the attention of the operators regarding the Act of 01/09/2016 and the “prepaid cards” Royal Decree of 27/11/2016
- Consultation of 11 October 2016 on the conditions of use of IPV4/CGN
- Consultation on the options in the ETSI norms to be respected by the operators within the framework of their collaboration with the legal authorities and the intelligence and security services
- Communication of 1 June 2016 at the request of the Vice-Premier and Minister of digital agenda, telecom and postal services on the identification of the end-users of prepaid cards
- Consultation of 29 March 2016 at the request of the Vice-Premier and Minister of Digital Agenda, telecom and postal services on the identification of the end-users of prepaid cards
- Consultation of 8 February 2016 at the request of the Vice-Premier and Minister of Digital Agenda, Telecom and Postal Services on the draft Royal Decree replacing the Royal Decree of 9 January 2003 on the terms and conditions of the legal collaboration obligation in case of judicial requests on electronic communications
- Consultation of 7 December 2015 at the request of Minister De Croo on the draft bill amending article 127 of the act of 13 June 2005 on electronic communications
- Consultation of 31 july 2015 at the request of the Vice-Premier and Minister of digital agenda, telecom and postal services on the draft bill regarding data retention in the electronic communications sector
- BIPT FAQ about the operators' obligations regarding identification of end-users of public electronic communications services