dutch

Dutch Council of State: mass storage of fingerprints in databases unlawful

Wednesday, 25 May 2016

Mass storage of fingerprints violates the right to privacy 

Following the Court of Appeal of The Hague, today the Dutch Council of State (Raad van State) judged that municipal (‘decentral’) storage of fingerprints under the Dutch Passport Act is unlawful on account of violation of the right to privacy. The Council of State reached this conclusion in seven administrative law cases of Dutch individual citizens (supported by civil organization Vrijbit). At the start of 2014, the Court of Appeal of The Hague handed down a similar ruling in the civil Passport case by the Privacy First Foundation and 19 (other) citizens against the Dutch government. Subsequently however, our Passport trial was declared inadmissible by the Dutch Supreme Court and was redirected to the administrative judge: the Dutch Council of State. Privacy First then submitted its entire case file to the Council of State in order to reinforce the individual passport cases pending before this body. The Council of State (the supreme administrative court of the Netherlands) now rules similar to the way the Court of Appeal of The Hague has done before. Notwithstanding the later inadmissibility before the Supreme Court, the ban on the storage of everyone’s fingerprints in databases thus stands firm once again.

Faulty judgement and procedure

As was the case with the previous judgement by the Court of Appeal of The Hague, Privacy First regrets that the Council of State was unwilling to declare the storage of fingerprints unlawful on strictly principal grounds (that is, because of a lack of societal necessity, proportionality and subsidiarity), but merely on the basis of technical imperfections. Therefore, Privacy First will advise the concerned citizens to keep on litigating all the way up to the European Court of Human Rights (ECtHR) in Strasbourg. Considering the existing Strasbourg case law, there is a high likeliness that the Netherlands will still be condemned on principal grounds on account of violation of the right to privacy (art. 8 European Convention on Human Rights, ECHR). Privacy First also expects a condemnation on account of violation of the right of access to justice and an effective legal remedy (art. 6 and 13 ECHR). After all, civil litigation against the Dutch Passport Act proved to be impossible, and administrative legal action was possible only indirectly after the rejection of individual requests for new passports or ID cards (in case the applicants refused to have their fingerprints taken). In order to obtain their current victory before the Council of State, these citizens thus have had to get by for years without passports or ID cards, with all the problems and risks this entailed.

Exceptions for conscientious objectors

In today’s judgement, the Council of State also decided that the compulsory taking of two fingerprints for a new passport applies equally to everyone and that there can be no exceptions for people who do not want to have their fingerprints taken out of conscientious objections. Privacy First is doubtful whether this verdict will stand the scrutiny of the ECtHR. Apart from a violation of the right to privacy, it seems this decision is also in breach of the freedom of conscience (art. 9 ECHR). The fact that the European Passport Regulation does not include such an exception is irrelevant as this Regulation is subordinate to the ECHR.

RFID chips and facial scans

Privacy First also deplores the fact that the Council of State was not prepared to make a critical assessment of the risks of Radio Frequency Identification (RFID) chips (which include sensitive personal data that can be read remotely) in passports and ID cards. The same goes for the compulsory storage of facial scans in municipal databases. But these aspects, too, can still be challenged in Strasbourg.

Municipalities’ own responsibility

A small ray of hope in the judgement by the Council of State is that municipalities and mayors have their own responsibility to respect human rights (including the right to privacy) independently, even if this means independently refraining from applying national legislation because it violates higher international or European law:

"Insofar as the mayor claims that there is no possibility to deviate from the provisions (laid down in national law), the [Council of State] holds that pursuant to Article 94 of the [Dutch] Constitution, current statutory provisions within the Kingdom [of the Netherlands] do not apply if such application is not compatible with any binding provisions of treaties and of resolutions of international organizations.’’ (Source in Dutch, paragraph 6.)

This decision by the Council of State applies to all domains and could have far-reaching consequences in the future.

New ID cards for free

The ruling of the Council of State entails that for applications of new ID cards, fingerprints have been taken (and stored) on a massive scale but without a legal basis since 2009. Accordingly, Privacy First advises everyone in the possession of an ID card with fingerprints to change it (if desired) at his or her municipality for a free new one without fingerprints. If municipalities refuse to offer this service, Privacy First reserves the right to take new legal steps in this regard.

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