In a previous blogpost 'Foreign operators and the Belgian Justice Coordination Cell', we discussed the obligation for electronic communications network operators and providers of electronic communications services to establish a Justice Coordination Cell. Two of the core elements of this obligation are that the Justice Coordination Cell must be established within Belgium and that its member(s) must obtain a security advice from the Belgian intelligence services.
Of course, an important issue arises when a network operator or provider of electronic communications services does not have an establishment or branch office in Belgium, nor has Belgian employees that could obtain the necessary security advice. How can such operators or service providers fulfil an obligation that they have no practical means to fulfil on their own? As often, the answer may be found in outsourcing. In this blogpost, we discuss two important and mandatory positions regarding the Justice Coordination Cell that may be outsourced.
Essentially, network operators and service providers bound to the obligation to establish a Justice Coordination Cell need two things: an address in Belgium where they can formally base their Justice Coordination Cell, and a person in Belgium – or having lived in Belgium for at least five years – who can obtain a security advice from Belgian intelligence services. Both of these can be provided by a reliable third party.
For instance, a third party could be appointed as a member of the operator or service provider’s Justice Coordination Cell. This person should then obtain the necessary security advice from Belgian intelligence services, which must be renewed every five years. The Justice Coordination Cell should be permanently available to promptly answer any information requests coming in from authorities and liaise with the Belgian telecom regulator. An operational playbook established between the operator or service provider and the third party must then describe how the third party can obtain the necessary data from the operator or service provider to answer information requests.
Second, this third party could let the operator or service provider’s Justice Coordination Cell be established at its own premises, thus providing for a Belgian address for this entity. This includes providing an address and telephone number, both of which must be communicated to the telecom regulator.
Do you have any questions and would you like an introductory meeting? Book a free 15-minute call with Geert at geert.lawyer.brussels (reserved for organisations).
Apart from the member(s) of the Justice Coordination Cell, the operator or service provider must also designate an appointee for the protection of personal data. This position is a bit comparable – but not entirely the same – as the data protection officer (DPO) under the General Data Protection Regulation (GDPR).
The appointee itself is not a member of the Justice Coordination Cell. Therefore, it is a separate position that cannot be fulfilled by members of the Justice Coordination Cell. The appointee must be able to fulfil its function in complete independence and may not be fired or replaced as a result of the exercise of this function.
Like the member(s) of the Justice Coordination Cell, the appointee must have obtained security advice from the Belgian intelligence services.
The appointee must ensure that information requests are handled in accordance with the law, that the operator or service provider only retains the data it may retain, that only competent authorities receive access to the data, and that adequate security measures are taken. This includes having access to the data that is subject to information requests by authorities. The appointee must be able to communicate directly with the directors of the operator or service provider.
Much like the function of DPO under the GDPR, the appointee for the protection of personal data could be an external person. Many service providers, like law firms, are offering DPO-as-a-service contracts and are therefore well-suited to fulfil this function as well.
Are you a foreign electronic communications network operator or provider of electronic communications services seeking assistance for your Justice Coordination Cell? Timelex is experienced in this matter and glad to support you when you contact us or book a free 15-minute call with Geert at geert.lawyer.brussels (reserved for organisations).