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30 JULY 2013. - An Act to amend sections 2, 126 and 145 of the Act of 13 June 2005 on electronic communications and section 90decies of the Code of Criminal Investigation (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Object
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act partially transposes in Belgian law the Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006 on the conservation of data generated or processed within the framework of the provision of electronic communications services accessible to the public or public communications networks, and amending Directive 2002/58/EC (directive "conservation of data") (Official Gazette, 13 April 2006, L 105/54) and Article 15.1 of the Directive 2002/58/EC of the European Parliament
CHAPTER 2. - Amendments to the Electronic Communications Act of 13 June 2005
Art. 3. Article 1^er of the Act of 13 June 2005 on electronic communications, as amended by the Act of 10 July 2012, is supplemented by a paragraph written as follows:
"This Act partially transposes the Directive 2006/24/EC of the European Parliament and the Council of 15 March 2006 on the preservation of data generated or processed in the framework of publicly accessible electronic communications services or public communications networks, and amending Directive 2002/58/EC (directive "conservation of data") (Official Gazette, 13 April 2006, L 105/54) and Article 15.1 of the Directive 2002/58/EC of the European Parliament and the Council of 12 July "
Art. 4. In section 2 of the Act, as amended by the Acts of 18 May 2009 and 10 July 2012, the following amendments are made:
(a) the 11° is replaced by the following:
"11° "operator": any person subject to the obligation to notify in accordance with Article 9; »;
(b) the article is supplemented by a 74° written as follows:
"74° "Unsuccessful Calls": any communication during which a call was transmitted but remained unanswered or was the subject of an intervention by the network manager. "
Art. 5. Section 126 of the Act is replaced by the following:
"Art. 126. § 1^er. Without prejudice to the Act of 8 December 1992 on the protection of privacy in respect of personal data processing, suppliers to the public of fixed telephone services, mobile phones, internet access, electronic mail and telephone services processed by the Internet, as well as the suppliers of the underlying public electronic communications networks, retain the traffic data, the end-user data, the user identification data
By suppliers within the meaning of this article, resellers are also understood on their own behalf and on their own behalf.
By telephony service within the meaning of this article, telephone calls - including voice calls, voicemail, teleconference and data communication -, additional services - including the reference or transfer of calls - and messaging and multimedia services, including short message services (SMS), enhanced media services (EMS) and multimedia services (MMS).
The King shall, by order deliberately in the Council of Ministers, on the proposal of the Minister of Justice and the Minister, and after the advice of the Commission on the Protection of Privacy and the Institute, the data to be retained by type of service pursuant to paragraph 1^er and the requirements to be met by these data.
Unless otherwise provided by law, no data revealing the content of the communications may be retained.
The obligation to retain the data referred to in paragraph 1^er also applies to unsuccessful appeals, provided that such data are, as part of the provision of the relevant communications services:
1° with respect to telephone data, generated, processed and stored by electronic communications service providers accessible to the public or a public electronic communications network, or
2° with respect to the data of the internet, published by these suppliers.
§ 2. Data referred to in paragraph 1^erParagraph 1^er, are retained for:
(a) the investigation, investigation and prosecution of criminal offences referred to in articles 46bis and 88bis of the Code of Criminal Investigation;
(b) the repression of malicious appeals to emergency services referred to in section 107;
(c) the investigation by the Telecommunications Mediation Service of the identity of persons who have carried out a malicious use of an electronic network or communications service referred to in article 43bis, § 3, 7°, of the Act of 21 March 1991 on the reform of certain economic public enterprises;
(d) the performance of intelligence missions by using the data collection methods referred to in sections 18/7 and 18/8 of the Act of 30 November 1998 of the Intelligence and Security Services Organization.
Service and network providers referred to in paragraph 1^erParagraph 1^erensure that the data in paragraph 1^erParagraph 1^er, be unlimitedly accessible from Belgium and that such data and any other necessary information concerning these data may be transmitted without delay and upon request to the authorities responsible for the missions referred to in (a) to (d) and only to them.
§ 3. The data to identify end-users, the electronic communications service used and the terminal equipment that is presumed to have been used are retained from the subscription to service, as long as an incoming or outgoing communication is possible using the subscribed service and for twelve months from the date of the last incoming or outgoing communication registered.
Traffic and location data are retained for 12 months from the date of communication.
The King shall, by order deliberately in the Council of Ministers, on the proposal of the Minister of Justice and the Minister, and after the advice of the Commission on the Protection of Privacy and the Institute, establish the data referred to in paragraph 1^er and those in paragraph 2.
§ 4. Following the assessment report referred to in paragraph 7, the King may, by order deliberately in the Council of Ministers and after the advice of the Institute and the Privacy Commission, adapt the data retention period for certain categories of data, without the time limit being 18 months.
The King may, in the circumstances referred to in Article 4, § 1^er, by order deliberately in the Council of Ministers, and after the advice of the Institute and the Commission for the Protection of Privacy, for a limited period, set a time limit for the retention of data more than twelve months.
Where, in the circumstances referred to in paragraph 2, the King shall establish a shelf-life of more than twenty-four months, the Minister shall immediately notify the European Commission and other Member States of the European Union of any action taken, together with its motivation.
§ 5. For the storage of data referred to in paragraph 1^erParagraph 1^ere-communication service providers referred to in paragraph 1^erParagraph 1^er :
1° ensure that the stored data are of the same quality and are subject to the same security and protection requirements as the data on the network;
2° ensure that retained data are subject to appropriate technical and organizational measures to protect them from accidental or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful storage, processing, access or disclosure;
3° ensure that access to the stored data is made only by one or more members of the Justice Coordination Unit referred to in Article 2 of the Royal Decree of 9 January 2003 determining the terms and conditions of the obligation of legal collaboration in the event of legal requests for electronic communications and by the agents and agents of such suppliers specifically authorized by the said Cell;
4° ensures that the stored data is destroyed when the retention period for this data has expired.
The King shall, by deliberate order in the Council of Ministers, on the proposal of the Minister of Justice and the Minister, and after the advice of the Commission on the Protection of Privacy and the Institute, establish the technical and administrative measures that service providers and networks referred to in paragraph 1^erParagraph 1^er, must be taken to ensure the protection of personal data retained.
Service whistles and networks referred to in paragraph 1^erParagraph 1^er, are considered responsible for the processing of such data within the meaning of the Privacy Protection Act of 8 December 1992 with respect to personal data processing.
§ 6. The Minister and the Minister of Justice ensure that data retention statistics that are generated or processed in the provision of publicly accessible communications services or networks are transmitted annually to the European Commission and the House of Representatives. These statistics include:
(1) cases in which information has been transmitted to the competent authorities in accordance with the applicable legal provisions;
2° the period between the date on which the data was retained and the date on which the competent authorities requested their transmission;
3° the cases in which data requests could not be met.
These statistics cannot include personal data.
The data relating to the application of paragraph 2, (a), will also be attached to the report to Parliament by the Minister of Justice pursuant to Article 90decies of the Code of Criminal Investigation.
The King determines, on the proposal of the Minister of Justice and Minister and on the advice of the Institute, the statistics that service providers or networks transmit annually to the Institute and those that the Institute transmits to the Minister and the Minister of Justice.
§ 7. Without prejudice to the report referred to in paragraph 6, paragraph 3, the Minister and the Minister of Justice shall make an assessment report to the House of Representatives, two years after the Royal Decree referred to in paragraph 1 comes into force.^er, paragraph 3, on the implementation of this article, in order to verify whether provisions should be adapted, in particular with regard to the data to be retained and the duration of the retention. "
Art. 6. In section 145 of the Act, amended by the Act of 25 April 2007, a paragraph 3ter is inserted as follows:
§ 3ter. Is punished by a fine of 50 euros to 50,000 euros and a prison sentence of six months to three years or only one of these penalties:
1° any person who, on the occasion of the performance of his or her duties, excluding the cases provided for by law or without complying with the formalities prescribed by law, with a fraudulent intention or intent to harm, shall, in any way, hold, or make any use of the data referred to in section 126;
2° the person who, knowing that the data were obtained by the commission of the offence referred to in 1st holds them, reveals them to another person, or discloses or makes any use of the data thus obtained. »
CHAPTER 3. - Amendment of Article 90decies of the Code of Criminal Investigation
Art. 7. Article 90decies of the Code of Criminal Investigation, inserted by the Act of 30 June 1994 and amended by the Acts of 8 April 2002, 7 July 2002 and 6 January 2003, is supplemented by a paragraph, which reads as follows:
"To this report is attached the report submitted pursuant to Article 126, § 6, paragraph 3 of the Act of 13 June 2005 on electronic communications. "
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 30 July 2013.
PHILIPPE
By the King:
Minister of Economy,
J. VANDE LANOTTE
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2012-2013.
House of Representatives.
Documents. - Bill, 53-2921/001. - Amendment, 53-2921/002. Report, 53-2921/003. - Text corrected by commission, 53-2921/004. Amendments, 53-2921/005.
Full report. - 16-17 July 2013.
Senate.
Documents. - Project referred to by the Senate, 5-2222 - No. 1. - Amendments, 5-2222 - No. 2. - Report, 5-2222 - No. 3. - Decision not to amend, 5-2222 - No. 4.
Annales of the Senate. - 18 July 2013.