Law Amending Articles 2, 126, And 145 Of The Act Of 13 June 2005 On Electronic Communications And Article 90Decies Of The Code Of Criminal Investigation (1)

Original Language Title: 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 (1)

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2013011417&caller=list&article_lang=F&row_id=1100&numero=1151&pub_date=2013-08-23&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2013-08-23 Numac: 2013011417 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES average and energy July 30, 2013. -Law amending articles 2, 126 and 145 of the Act of 13 June 2005 on electronic communications and article 90decies of the Code of criminal procedure (1) PHILIPPE, King of the Belgians to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Article 1 object.
This Act regulates a matter referred to in article 78 of the Constitution.
S. 2. this Act transpose partially in Belgian law Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in the context of the provision of services of electronic communication to the public, or of public communications networks and amending Directive 2002/58/EC (directive "data retention") (Official Journal (, April 13, 2006, L 105/54) and article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (directive on privacy and electronic communications") (Official Journal, July 31, 2002, L 201/37).
CHAPTER 2. -Amendments of Act of 13 June 2005 on electronic communications arts. 3. article 1 of Act of 13 June 2005 on electronic communications, amended by the law of July 10, 2012, is supplemented by a paragraph worded as follows: "this Act partially transposes Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in the framework of public communications networks or publicly available electronic communications services , and amending Directive 2002/58/EC (directive "data retention") (Official Journal, April 13, 2006, L 105/54) and article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (directive on privacy and electronic communications") (Official Journal (, July 31, 2002, L 201/37). ».
S.
4. section 2 of the Act, as amended by laws of May 18, 2009 and July 10, 2012, the following changes are made: has) 11 ° is replaced by the following: ' 11 ° 'operator': any person subject to the obligation to introduce a notification in accordance with article 9. ';
(b) article is supplemented by a 74 ° as follows: ' 74 ° 'Unsuccessful calls': any communication during which an appeal has been transmitted but remained unanswered or has been the subject of an intervention on the part of the network manager. ''
S. 5. article 126 of the Act is replaced by the following: «art.» 126 § 1. Without prejudice to the law of 8 December 1992 relative to the protection of privacy with regard to processing of personal data, suppliers to the public of fixed telephony, mobile telephony services, internet access, electronic mail via the internet and internet telephony, as well as the providers of public electronic communications networks underlying , retain traffic data, location data, the identification of end-users, the identification data of the electronic communications service used and the identification data of terminal equipment that is alleged to have been used, which are generated or processed by them in the framework of the provision of communications services concerned.
Suppliers within the meaning of this article, also includes resellers in own name and for their own account.
Phone service within the meaning of this section, means phone calls - including voice calls, voice mail, conference call and data communication-, additional services - including the reference or call forwarding - and messaging and multimedia services including services of short messages (SMS), enhanced media (EMS) services and multimedia services (MMS).
The King sets, by Decree deliberated in the Council of Ministers, on a proposal of the Minister of Justice and the Minister, and after receiving the opinion of the Committee on the protection of privacy and the Institute, record keeping by type of service pursuant to the paragraph 1 as well as the requirements to which these data must meet.
Unless otherwise legal, no data revealing the content of the communication may be kept.
The obligation to keep the data referred to in paragraph 1 shall also apply to the unsuccessful appeals, as far as these data are, in the context of the provision of communications services concerned: 1 ° as regards telephony data, generated, processed and stored by providers of a public electronic communications network or publicly available electronic communications services , or 2 ° with respect to the data from the internet, logged by these providers.

§ 2. The data referred to in paragraph 1, paragraph 1, are kept in sight: has) research, training and the prosecution of criminal offences referred to in articles 46bis and 88bis of the Code of criminal procedure;
(b) the Suppression of malicious calls to emergency services, referred to in section 107;
(c) of the search by the mediation Service for telecommunications of the identity of persons who made a malicious use of a network or an electronic communications service, referred to in article 43bis, § 3, 7 °, of the law of 21 March 1991 on the reform of some economic public companies;
(d) for the accomplishment of the missions of intelligence by resorting to the methods of data collection referred to in articles 18/7 and 18/8 of the law of 30 November 1998, organic from intelligence and security services.
Networks and service providers referred to in paragraph 1, paragraph 1, are ensuring that the data listed in paragraph 1, 1st paragraph, are accessible unlimitedly from the Belgium and that these data and any other necessary information concerning these data can be transmitted without delay and on simple request to the authorities responsible for the tasks referred to in points) d) and only the latter.
§ 3. Data to identify end users, the electronic communications service used and the terminal equipment that is alleged to have been used are kept from the subscription to the service, as long as inbound or outbound communication is possible using the subscribed service and during twelve months from the date of the last incoming communication or registered outbound.
Traffic and location data are retained twelve months from the date of the communication.
The fixed King, by Decree deliberated in the Council of Ministers, on a proposal of the Minister of Justice and the Minister, and after receiving the opinion of the Committee on the protection of privacy and of the Institute, the data which are subject to the paragraph 1 and those that are in paragraph 2.
§ 4. As a result of the assessment report referred to in paragraph 7, the King may, by Decree deliberated in the Council of Ministers and after receiving the opinion of the Institute and the Committee on the protection of private life, adapt the retention period of the data for certain categories of data, without that this period does not exceed 18 months.
The King may, in the circumstances referred to in article 4, § 1, by Decree deliberated in the Council of Ministers, and after receiving the opinion of the Institute and the Committee on the protection of privacy, and for a limited period, set a retention period of data greater than twelve months.
Where, in the circumstances referred to in paragraph 2, the King sets a greater than 24 months storage period, the Minister shall immediately notify the European Commission and to the other Member States of the European Union any action taken, accompanied by his motivation.
§ 5. For the conservation of the data referred to in paragraph 1, subparagraph 1, networks or electronic communications services providers referred to in paragraph 1, 1st paragraph: 1 ° ensure that retained data are of the same quality and are subject to the same requirements of safety and protection that data on the network;
2 ° ensure that retained data are subject to technical and organisational measures, appropriate it to protect them against accidental or unlawful destruction, loss or accidental alteration, storage, processing, access or disclosure unauthorized or unlawful;
3 ° ensure that access to retained data is carried out by one or several members of the coordination cell of Justice referred to in article 2 of the royal decree of 9 January 2003 determining the terms of the obligation of legal judicial claims collaboration concerning electronic communications and by the officers and servants of these providers specifically authorized by said cell;
4 ° ensure that retained data are destroyed when expired applicable to these data retention period.
The King sets, by Decree deliberated in the Council of Ministers, on a proposal of the Minister of Justice and the Minister, and after receiving the opinion of the Committee on the protection of privacy

and the Institute, the technical and administrative measures that the providers of services and networks referred to in paragraph 1, paragraph 1, must take into view the protection of the personal data stored.
The suppliers of services and networks referred to in paragraph 1, paragraph 1, are considered to be responsible for the processing of these data within the meaning of the law of 8 December 1992 relative to the protection of privacy with regard to the processing of personal data.
§ 6. The Minister and the Minister of Justice shall ensure that statistics on the retention of data which are generated or processed in the framework of the provision of services or of public communications networks are transmitted annually to the Commission European and in the House of representatives.
These statistics include: 1 ° cases in which information was transmitted to the competent authorities in accordance with the applicable legal provisions;
2 ° the elapsed time between the date from which the data were retained and the date on which the competent authorities have requested their transmission;
3 ° the cases where requests for data could not be met.
These statistics may not include personal data.
Data concerning the application of paragraph 2, a), will be also attached to the report that the Minister of Justice must make to Parliament in accordance with article 90decies of the Code of criminal procedure.
The King determines, on proposal of the Minister of Justice and Minister and opinion of the Institute, the statistics that providers of services or networks transmit annually to the Institute and those that the Institute shall forward 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 are an assessment report to the House of representatives, two years after the entry into force of the royal decree referred to in paragraph 1, paragraph 3, on the implementation of this article, in order to check whether provisions should be adapted, in particular with regard to record keeping and the shelf. ».
S.
6. in article 145 of the Act, as amended by the Act of April 25, 2007, inserted a paragraph 3 ter to read: "§ 3ter.". Shall be punished by a fine of 50 euros to 50,000 euros and an imprisonment of six months to three years or one of those penalties only: 1 ° any person who, on the occasion of the exercise of its functions, off cases provided for by law or without complying with the formalities prescribed, with fraudulent intent or intent to harm, resumed in any way whatsoever holds, or use any of the data referred to in article 126.
2 ° who, knowing that the data were obtained by the commission of the offence referred to in 1 ° holds, disclose to another person, or is disclosed or use any of the data thus obtained. "CHAPTER 3. -Amendment of article 90decies of the Code of criminal procedure art.
7. article 90decies of the Code of criminal procedure, inserted by the law of 30 June 1994 and amended by laws of April 8, 2002, 7 July, 2002 and January 6, 2003 is supplemented by a paragraph, as follows: "has this report is attached the report prepared pursuant to section 126, § 6, paragraph 3 of the Act of 13 June 2005 on electronic communications. ''
Promulgate this Act, order that it self under the seal of the State and published by le Moniteur.
Given in Brussels, July 30, 2013.
PHILIPPE by the King: the Minister of the economy, J. VANDE LANOTTE the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: 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 the commission 53-2921/004. Amendments 53-2921/005.
Compte rendu intégral. -16 and July 17, 2013.
Senate.
Documents.
-Project mentioned 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.
Annals of the Senate. -18 July 2013.