Controversial draft bill on the Norwegian Intelligence Service
On 12th November 2018, the Ministry of Defence published a consultation paper proposing a new law on the Norwegian Intelligence Service to replace the Intelligence Service Act of 1998 (The consultation document and draft law are available in Norwegian). The draft bill proposes the regulation of a form of “digital border defence”, described in the bill as a form of facilitated access to cross-border electronic communication.
The draft bill inter alia imposes a duty on electronic communications service providers and providers of Internet-based communication and messaging services to facilitate access by the Intelligence Service to cross-border electronic communication by, in an appropriate manner, mirroring and making communication flows available to the Intelligence Service and to facilitate their selection, filtering, testing, storage and search of data. The Intelligence Service may also store and carry out searches in metadata from cross-border electronic communications, as well as acquire and store content and accompanying metadata from such cross-border communications. An important control measure that the draft bill provides is that any such search, acquisition and storage of metadata and content must have been previously approved by a court ruling.
Such facilitated access to cross-border electronic communication, in particular the acquisition and storage of metadata, has been criticised by a number of organisations in their consultation response.
The Norwegian Data Protection Authority (“DPA”) stated that, although the work of the Norwegian Intelligence Service is directed at external threats, the proposed measures will effect most Internet and telephony users in Norway since Norwegian data traffic goes in and out of the country, irrespective of whether the communication is between persons who both reside in Norway. Facilitated access as proposed in the draft bill, in practice, will mean surveillance over everyone and have a chilling effect on freedom of speech, according to the DPA. The draft bill is thus, according to the DPA, not in line with Norway’s human rights obligations and should not be adopted in its current form.
Other critics of the draft bill include the Norwegian Union of Journalists (Norsk Journalistlag), the Norwegian Press Association (Norsk Presseforbund) and the Association of Norwegian Editors (Norsk Redaktørforening) who respectively hold that the draft bill is contrary to freedom of expression and the right of journalists to protect their sources pursuant to Article 10 of the European Convention on Human Rights.
It will be interesting to see whether and to what extent the concerns raised in inter alia the aforementioned responses will be taken up and integrated in any eventual bill.