The hearing at the court of appeal in The Hague in the proceedings of Privacy First against the register for Ultimate Beneficial Owners (UBO) is scheduled for Monday, 27 September 2021.
Following the very critical advice of the European Data Protection Supervisor (EDPS), the district court of The Hague confirmed on 18 March 2021 that there is every reason to doubt the validity of the European money laundering directives that form the basis for the UBO register. The judge ruled that it cannot be excluded that the highest European court, the Court of Justice of the EU (CJEU), will conclude that the public nature of the UBO register is not in line with the principle of proportionality. Since a Luxembourg local court has already refered questions about this to the CJEU, the Dutch court in summary proceedings did not find it necessary to ask questions about it as well. Privacy First has appealed the judgment in these summary proceedings, taking the case to the court of appeal of The Hague. Our appeal summons can be found here (pdf in Dutch).
Privacy First requests the court of appeal to ask preliminary questions on the UBO register to the European Court of Justice and calls for the suspension of the operation of the UBO register until these questions have been answered. Privacy First also asks the court to temporarily suspend the public accessibility of the UBO register, at least until the CJEU has ruled on this matter. The court of appeal's ruling is expected a few weeks after the hearing on 27 September 2021.
‘‘The UBO register will put privacy-sensitive data of millions of people up for grabs’’, Privacy First’s attorney Otto Volgenant of Boekx Attorneys comments. ‘‘There are doubts from all sides whether this is an effective tool in the fight against money laundering and terrorism financing. It’s like using a sledgehammer to crack a nut. The Court of Justice of the EU will ultimately rule on this. I expect that it will annul the UBO register – at least its public accessibility. Until then, I advise UBOs not to submit any data to the UBO register. Once data have been made public, they cannot be retrieved.’’
Background of the lawsuit against the UBO register
Privacy First is bringing a lawsuit against the Dutch government regarding the UBO Register which was introduced in 2020. In summary proceedings, the invalidity of the EU regulations on which the UBO register is based are being invoked. The consequences of this new legislation are far-reaching. After all, it concerns very privacy-sensitive information. Data about the financial situation of natural persons will be out in the open. More than 1.5 million legal entities in the Netherlands that are listed in the Dutch Trade Register will have to disclose information about their ultimate beneficial owners. The UBO register is accessible to everyone, for €2.50 per retrieval. This level of public accessibility is not proportionate.
On 24 June 2020, the Dutch ‘Implementation Act on Registration of Ultimate Beneficial Owners of Companies and Other Legal Entities’ entered into force. Based on this new Act, a new UBO register linked to the Trade Register of the Netherlands Chamber of Commerce will contain information on all ultimate beneficial owners of companies and other legal entities incorporated in the Netherlands. This information must indicate the interest of the UBO, i.e. 25-50%, 50-75% or more than 75%. In any case, the UBO’s name, month and year of birth as well as nationality will be publicly available for everyone to consult, with all the privacy risks this entails.
Since 27 September 2020, newly established entities must register their UBO in the UBO Register. Existing legal entities have until March 27 2022 to register their UBOs. The law gives only very limited options for shielding information. This is only possible for persons secured by the police, for minors and for those under guardianship. The result will be that the interests of almost all UBOs will become public knowledge.
European Anti-Money Laundering Directive
This new law stems from the Fifth European Anti-Money Laundering Directive, which requires EU Member States to register and disclose to the public the personal data of UBOs. The aim of this is to combat money laundering and terrorist financing. According to the European legislator, the registration and subsequent disclosure of personal data of UBOs, including the interest that the UBO has in a company, contributes to that objective. The public nature of the register would have a deterrent effect on persons wishing to launder money or finance terrorism. But the effectiveness of a UBO register in the fight against money laundering and terrorism has never been substantiated.
Massive privacy violation and fundamental criticism
The question is whether the means does not defeat the purpose. Registering the personal data of all UBOs and making it accessible to everyone is a blanket measure of a preventive nature. 99.99% of all UBOs have nothing to do with money laundering or terrorist financing. If it was in fact proportionate to collect information on UBOs, it should be sufficient if that information is available to those government agencies involved in combating money laundering and terrorism. Making the information completely public is going too far. The European Data Protection Supervisor already ruled that this privacy violation is not proportionate. But this opinion has not led to an amendment of the European directive.
Leading up to the the debate on this law in the Dutch House of Representatives, fundamental criticism came from various quarters. The business community agitated because it feared – and now experiences – an increase in burdens and perceives privacy risks. UBOs of family-owned companies that have remained out of the public eye up until now are running major privacy and security risks. There was also a great deal of attention for the position of parties that attach great importance to the protection of data subjects, such as church communities and social organizations. As for associations and foundations that do not have owners, things are cumbersome: they have to put the data that is already in the Trade Register in another register. Unfortunately, this has not led to any changes in the regulations.
Dutch investigative journalism platform Follow the Money looked into the social costs of the Dutch UBO register. Follow the Money writes: ‘‘The UBO register entails costs, hassle and sometimes slightly absurd bureaucracy for millions of entrepreneurs and directors. The Ministry of Finance reckons the total costs of the register for the business community is 99 million Euros. Another 9 million Euros must be added for in one-time implementation costs. When lawyer Volgenant hears about this amount, he reacts with dismay: 'The total costs are much higher than I thought! If you extrapolate that to the whole EU, the costs are astronomical.’’’
Favourable outcome of lawsuit is likely
Privacy First has initiated a lawsuit against the UBO register for violation of the fundamental right to privacy and the protection of personal data. Privacy First requests the Dutch judiciary to render the UBO register inoperative in the short term and to submit preliminary questions on this subject to the Court of Justice of the European Union. It would not be the first time privacy-violating regulations are repealed by the courts, something that previous Privacy First lawsuits attest to.
The Dutch law and also the underlying European directive are in conflict with the European Charter of Fundamental Rights as well as the General Data Protection Regulation. The legislator has created these regulations, but it is up to the courts to conduct a thorough review of them. Ultimately the judge will have the final say. If the (European) legislator does not pay enough attention to the protection of fundamental rights, then the (European) judge can cast the regulations aside. The Court of Justice of the European Union has previously declared regulations invalid due to privacy violations, for example the Telecom Data Protection Directive and the Privacy Shield. The Dutch courts also regularly invalidate privacy-invading regulations. Privacy First has previously successfully challenged the validity of legislation, for example in the proceedings about the Telecommunications Data Retention Act and in the proceedings against SyRI. Viewed against this background, the lawsuit against the UBO register is considered very promising.
Update 27 September 2021: this afternoon the court session took place in The Hague; click HERE for the pleading of our lawyer (pdf in Dutch). The judgment of the court of appeal is scheduled for 16 November 2021.
A Dutch court has today handed down a judgment in preliminary injunction proceedings brought by Privacy First concerning the UBO register. The district court of The Hague confirmed that there is every reason to doubt the legality of the European money laundering directives which are the foundation of the UBO register. On this point the judge follows the very critical opinion of the European Data Protection Supervisor. The interim proceedings court rules that it cannot be excluded that the Court of Justice of the European Union (CJEU) will come to the conclusion that the public character of the UBO register is at odds with the proportionality principle. Questions over its legality were recently referred to the CJEU by a Luxembourg national court. As such, the Dutch court felt there is no need to do the same.
Privacy First had also requested a temporary deactivation of the UBO register. This, however, is a step too far for the court, which states that deactivating the register is not possible as long as the underlying EU guideline is still in force. It would put the Netherlands in a position in which it operates in violation of the European guideline. With this claim, the judge says, Privacy First is getting ahead of itself. Privacy First will examine the ruling on this point, also in view of possibly going into appeal.
‘The introduction of the UBO register would mean that privacy-sensitive data of millions of people will be up for grabs’, comments Privacy First’s attorney Otto Volgenant of Boekx Attorneys.’On all sides there are strong doubts whether this is actually an effective means in the fight against money laundering and terrorism. It’s like using a sledgehammer to crack a nut. The Court of Justice of the European Union will eventually adjudicate the case, and I expect it will annul the UBO register.’
At the start of this year, the Privacy First Foundation initiated fundamental legal action against the Dutch government on account of the new UBO register, which is linked to the Trade Register of the Dutch Chamber of Commerce. Under the law the UBO register is based on, all 1.5 million Dutch legal entities that are included in the Trade Register will have to make public all sorts of privacy-sensitive data about their Ultimate Beneficial Owners. This concerns personal data of millions of directors, shareholders and high executives of companies (including family businesses), foundations, associations, churches, social organizations, charities, etc. Privacy First deems that this is a massive privacy violation, one which also creates personal safety risks. That is why Privacy First has asked the court to immediately declare the UBO register unlawful. A lot of information in the register will be publicly available and can be requested by anyone. In Privacy First’s opinion this is completely disproportionate and an infringement of European privacy law. The CJEU will examine whether the European legislation on which the UBO register is based violates the fundamental right to privacy.
The ruling (in Dutch) by the interim proceedings court can be found here: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2021:2457.
Update 15 April 2021: yesterday Privacy First filed an urgent appeal against the entire judgment with the Court of Appeal of The Hague. The appeal subpoena can be found HERE (pdf in Dutch). Privacy First requests the Court, inter alia, to ask preliminary questions about the UBO register to the European Court of Justice and to suspend the UBO register until these questions are answered. In view of the major interests at stake, Privacy First hopes that the Court of Appeal of The Hague will hear this case as soon as possible.
Update 17 August 2021: the court hearing in the urgent appeal of Privacy First against the judgment will take place on Monday 27 September at the Court of Appeal in The Hague.
Privacy First initiates legal action against the Dutch government on account of the recently-introduced UBO register. The preliminary injunction proceedings point at the invalidity of the legislation on which this register is based. The consequences of this new piece of legislation are far-reaching as the register contains very privacy-sensitive information. Data relating to the financial situation of natural persons will be up for grabs. More than 1.5 million legal entities that are registered in the Dutch Trade Register will have to make public details about their Ultimate Beneficial Owners (UBOs). The UBO register is publicly accessible: a request for information costs €2.50.
The UBO register aims to prevent money laundering but will lead to defamation.
The privacy breach that is the result of the UBO register and the public accessibility of sensitive data are disproportionate. The goal of the register is to thwart money laundering and terrorist financing. In order to achieve this goal there is no need for a UBO register, at least not one that is publicly accessible.
That is why Privacy First wants the UBO register to be rendered inoperative by a court, which, in case necessary, should submit questions of interpretation to the highest court in Europe: the European Court of Justice. In cases like these, the judiciary will have the final say. It is not uncommon for a court to overrule privacy-violating legislation and in this respect, Privacy First’s litigation has been successful in the past.
The proceedings will take place before The Hague District Court on 25 February 2021 at 12pm. The entire summons can be found HERE (pdf in Dutch). The ruling will follow two or three weeks after the hearing.
Background of the UBO register case
On 24 June 2020, the Dutch ‘Implementation Act for the Registration of Ultimate Beneficial Owners of Companies and Other Legal Entities’ came into effect in the Netherlands. On the basis of this new Act, a new UBO register which is linked to the Commercial Register of the Dutch Chamber of Commerce will contain information about all ultimate beneficial owners of companies and other legal entities founded in the Netherlands. The register should indicate how many shares are owned by the UBO: 25-50%, 50-75% or more than 75%. Furthermore, the name, month and year of birth as well as the nationality of the UBO will be made public, with all the privacy risks this entails.
Since 27 September 2020, newly founded entities have to register the ultimate beneficial owners in the UBO register. Existing legal entities will have to do so before 27 March 2022.
The Act provides very few possibilities to safeguard information. This is possible only for persons that are protected by the police, minors and those placed under guardianship. This means that the shares of practically every UBO will become a matter of public record. Anyone has access to the UBO register, with extracts coming at a price of €2.50.
European money laundering directive
The new Act stems from the fifth European money laundering directive, which obliges EU Member States to register UBOs and disclose their details to the public. According to the European legislator, this contributes to the proclaimed objective of countering money laundering and terrorist financing. The transparency is supposed to be a deterrent for persons who set out to launder money or finance terrorism.
Massive privacy violation and fundamental criticism
The question is whether this produces a windfall effect. Registering the personal data of all UBOs and making these publicly available is a generic precautionary measure. 99.99% of UBOs have nothing to do with money laundering or terrorist financing. Even if it were proportionate to collect information on all UBOs, making that information available only to government agencies engaged in combating money laundering and terrorism should suffice. It is not appropriate to disclose that information to everyone. The European Data Protection Supervisor (EDPS) deemed this privacy violation to be disproportionate. This opinion, however, did not lead to an amendment of the European Directive.
When this Act was discussed in Dutch Parliament, fundamental criticism came from various corners of society. The business community made its voice heard because it perceived privacy risks and feared − and now indeed experiences − an increase in costs. UBOs of family-owned companies that have remained out of the public eye up until now are running major privacy and security risks. There was also a great deal of attention for the position of social organizations − such as church communities and NGOs − that attach great importance to the protection of those affiliated with them. Associations and foundations that do not have owners face a different burden: they have to put the data that are already in the Trade Register in yet another register. Unfortunately these complaints have not resulted in any changes to the legislation.
Legal proceedings look promising
Privacy First has initiated legal proceedings against the UBO register for violation of the fundamental right to privacy and the protection of personal data. Privacy First asks the Dutch court to render the UBO register inoperative in the short term and, if necessary, to submit questions of interpretation on this matter to the highest court in Europe, the Court of Justice of the European Union.
The Dutch Act as well as the underlying European directive are in conflict with both the European Charter of Fundamental Rights and the GDPR. It is the legislator who has created this legislation, but it will be up to the court to do a thorough review thereof. Ultimately, the court has the last word. If the (European) legislator fails to take adequate account of the protection of fundamental rights, then the (European) court can invalidate this legislation. This would not be unique. The Court of Justice of the European Union has previously declared legislation invalid due to privacy violations, for example the Data Retention Directive and, more recently, the Privacy Shield. Dutch courts too regularly annul privacy-invading regulations. Privacy First has previously successfully challenged the validity of legislation, for example in the proceedings concerning the Telecommunications Data Retention Act and the System Risk Indication (SyRI). Viewed against this background, a positive outcome in the case against the UBO register is all but unlikely.
Today, the district court of The Hague ruled on the use of the algorithm-based system SyRI (System Risk Indication) by the Dutch government. The judges decided that the government, in trying to detect social services fraud, has to stop profiling citizens on the basis of large scale data analysis. As a result, people in the Netherlands are no longer 'suspected from the very start’ ("bij voorbaat verdacht").
The case against the Dutch government was brought by a coalition of NGOs, consisting of the Dutch Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten), the Netherlands Committee of Jurists for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM), Privacy First, the KDVP Foundation (privacy in mental healthcare), Dutch trade union FNV, the National Clients Council (LCR) and authors Tommy Wieringa and Maxim Februari.
The court concludes that SyRI is in violation of the European Convention on Human Rights. SyRI impinges disproportionately on the private life of citizens. This concerns not only those that SyRI has flagged as an 'increased risk', but everyone whose data are analysed by the system. According to the court, SyRI is non-transparent and therefore cannot be scrutinized. Citizens can neither anticipate the intrusion into their private life, nor can they guard themselves against it.
Moreover, the court draws attention to the actual risk of discrimination and stigmatization on the grounds of socio-economic status and possibly migration background, of citizens in disadvantaged urban areas where SyRI is being deployed. There is a risk – which cannot be examined – that SyRI operates on the basis of prejudices. The attorneys of the claimant parties, Mr. Ekker and Mr. Linders, had this to say: "The court confirms that the large scale linking of personal data is in violation of EU law, Dutch law and fundamental human rights, including the protection of privacy. Therefore, this ruling is also important for other European countries and on a wider international level."
From now on, as long as there is no well-founded suspicion, personal data from different sources may no longer be combined.
Line in the sand
"This ruling is an important line in the sand against the unbridled collection of data and risk profiling. The court puts a clear stop to the massive surveillance that innocent citizens have been under. SyRI and similar systems should be abolished immediately", states Privacy First director Vincent Böhre.
"Today we have been proved right on all fundamental aspects. This is a well-timed victory for the legal protection of all citizens in the Netherlands", says Tijmen Wisman of the Platform for the Protection of Civil Rights.
Another plaintiff in the case, trade union FNV, equally rejects SyRI on principal grounds. "We are delighted that the court has now definitively cancelled SyRI", comments Kitty Jong, vice chair of FNV.
The parties hope that the ruling will herald a turning point in the way in which the government deals with the data of citizens. They believe this viewpoint is endorsed by the considerations of the court: these apply not only to SyRI, but also to similar practices. Many municipalities in the Netherlands have their own data linking systems which profile citizens for all sorts of policy purposes. When it comes to combining data, a legislative proposal that would be greater in scope than SyRI and would enable lumping together the databases of private parties and those of public authorities, was all but unthinkable. The decision by the Hague district court, however, clamps down on these Big Data practices. According to the claimant parties, it is therefore of crucial importance that the SyRI ruling will affect both current as well as future political policies.
The case against SyRI serves both a legal and a social goal. With this ruling, both goals are reached. Merel Hendrickx of PILP-NJCM: "Apart from stopping SyRI, we also aimed at initiating a public debate about the way the government deals with citizens in a society undergoing digitisation. This ruling shows how important it is to have that discussion."
Although SyRI was adopted in 2014 without any fuss, the discussion about its legality intensified after the lawsuit was announced. At the start of 2019, the use of SyRI in two Rotterdam neighbourhoods led to protests among inhabitants and a discussion in the municipal council. Soon after, the mayor of Rotterdam, Ahmed Aboutaleb, pulled the plug on the SyRI program because of doubts over its legal basis. In June 2019, Dutch newspaper Volkskrant revealed that SyRI had not detected a single fraudster since its inception. In October 2019, the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, wrote a critical letter to the district court of The Hague expressing serious doubts over the legality of SyRI. Late November 2019, SyRI won a Big Brother Award.
The coalition of parties was represented in court by Anton Ekker (Ekker Advocatuur) and Douwe Linders (SOLV Attorneys). The proceedings were coordinated by the Public Interest Litigation Project (PILP) of the NJCM.
The full ruling of the court can be found HERE (official translation in English).
Fundamental lawsuit against mass risk profiling of unsuspected citizens
On Tuesday October 29 at 9:30 am in the district court of The Hague the court hearing will take place in the main proceedings of a broad coalition of Dutch civil society organizations against Systeem Risico Indicatie (System Risk Indication - SyRI). SyRI uses secret algorithms to screen entire residential areas to profile citizens on the risk of fraud with social services. According to the coalition of plaintiffs, this system poses a threat to the rule of law and SyRI must be declared unlawful.
The group of plaintiffs, consisting of the Dutch Platform for the Protection of Civil Rights, the Netherlands Committee of Jurists for Human Rights (NJCM), the Privacy First Foundation, the KDVP Foundation and the National Client Council (LCR), in March 2018 sued the Dutch Ministry of Social Affairs. Authors Tommy Wieringa and Maxim Februari, who previously spoke very critically about SyRI, joined the proceedings in their personal capacity. In July 2018, Dutch labour union FNV also joined the coalition.
The parties are represented by Anton Ekker (Ekker Advocatuur) and Douwe Linders (SOLV Attorneys). The case is coordinated by the Public Interest Litigation Project (PILP) of the NJCM.
Trawl method on unsuspected citizens
SyRI links the personal data of citizens from various government databases on a large scale. These centrally collected data are subsequently analyzed by secret algorithms. This should show whether citizens pose a risk of being guilty of one of the many forms of fraud and violations that the system covers. If the analysis of SyRI leads to a risk notification, then the citizen in question will be included in the so-called Risk Notices Register (Register Risicomeldingen), which can be accessed by government authorities.
SyRI uses this trawl method to screen all residents of a neighborhood or area. For this, the system uses almost all data that government authorities store about citizens. It comprises 17 data categories, which together provide a very intrusive picture of someone's private life. SyRI currently covers the databases of the Dutch Tax Authorities, Inspectorate of Social Affairs, Employment Office, Social Security Bank, municipalities and the Immigration Service. According to the Dutch Council of State (Raad van State), which gave a negative opinion on the SyRI bill, it was hard to imagine any data that did not fall within the scope of the system. Former chairman Kohnstamm of the Dutch Data Protection Authority, which also issued a negative opinion on the system, called the adoption of the SyRI legislation "dramatic" at the time.
Threat to the rule of law
According to the claimants, SyRI is a black box with major risks for the democratic rule of law. It is completely unclear to any citizen, who can be screened by SyRI without cause, what data are used for this, which analysis is carried out with it and what makes him or her a 'risk'. Moreover, due to the secret operation of SyRI, citizens are also unable to refute an incorrect risk indication. The use of SyRI makes the legal process and the associated procedures intransparent.
SyRI thereby undermines the relationship of trust between the government and its citizens; these citizens are in fact suspected in advance. Virtually all information that they share with the government, often to be eligible for basic services, can be used against them secretly without any suspicion.
The plaintiffs in this lawsuit are not opposed to the government combating fraud. They just think that this should be done on the basis of a concrete suspicion. There should be no trawl searches in the private life of unsuspected Dutch citizens to look for possible fraud risks. According to the claimants, this disproportionate method does more harm than good. There are better and less radical forms of fraud prevention than SyRI.
Not one fraudster detected yet
The total of five SyRI investigations that have been announced since the system's legal introduction have by now turned tens of thousands of citizens inside out, but have not yet detected one fraudster. This was revealed at the end of June 2019 by Dutch newspaper Volkskrant, which managed to get hold of evaluations of SyRI investigations. The investigations failed because the analyses were incorrect, due to lack of capacity and time at the implementing bodies, but also because there is disagreement within the government about SyRI.
For example, mayor Aboutaleb of Rotterdam pulled the plug from the SyRI investigation in two neighborhoods in Rotterdam South last summer, because the Ministry, unlike the municipality, also wanted to use police and healthcare data in the investigation. The deployment of SyRI also led to protest among the neighborhood's residents, who clearly showed that they felt insulted and unfairly treated.
UN expresses concern about SyRI
The UN Special Rapporteur on extreme poverty and human rights Philip Alston wrote to the court earlier this month about his concerns about SyRI and urged the judges to thoroughly assess the case. According to the rapporteur, several fundamental rights are at stake. SyRI is described in his letter as a digital equivalent of a social detective who visits every household in an area without permission and searches for fraudulent cases; in the analogue world such a massive manhunt would immediately lead to great resistance, but with a digital instrument such as SyRI, it is wrongly claimed that 'ignorance is bliss'.
The court hearing is open to the public and will take place on Tuesday October 29th from 9.30 am in the Palace of Justice, Prins Clauslaan 60 in The Hague. Case number: C/09/550982 HA ZA 18/388 (Nederlands Juristen Comité c.s./Staat).
Source: campaign website Bijvoorbaatverdacht.nl.
Today an important debate will take place in the Dutch House of Representatives about the introduction of Passenger Name Records (PNR): the large scale, years-long storage of all sorts of data of airline passengers, supposedly to fight crime and terrorism. Privacy First has major objections and at the end of last week has sent the following letter to the House. Today’s parliamentary debate was first scheduled to take place on 14 May 2018, but was cancelled (following a similar letter from Privacy First) until further notice. Following new parliamentary questions, the debate will now take place today after all. Here is the full text of our most recent letter:
Dear Members of the House of Representatives,
On Monday afternoon, this 11 March, you will discuss the Dutch implementation of the European directive on Passenger Name Records (PNR) with minister Grapperhaus (Justice and Security). In Privacy First’s view, both the European PNR directive as well as the Dutch implementation thereof are legally untenable. We shall here briefly elucidate our position.
Under the minister’s legislative proposal concerning PNR, numerous data of every single airline passenger travelling to or from the Netherlands will be stored for five years in a central government database of the new Passenger Information Unit and will be used to prevent, investigate and prosecute crimes and terrorism. Sensitive personal data (such as names, addresses, telephone numbers, email addresses, dates of birth, travel data, ID document numbers, destinations, fellow passengers and payment data) of many millions of passengers will, as a result, become available for many years for the purpose of data mining and profiling. In essence, this means that every airline passenger will be treated as a potential criminal or terrorist. In 99.9% of all cases, however, this concerns perfectly innocent citizens, mainly holidaymakers and business travellers. This is a flagrant breach of their right to privacy and freedom of movement. Last year, Privacy First had already made these arguments in the Volkskrant and on BNR Nieuwsradio. Because of privacy objections, in recent years there has been a lot of political resistance to such large scale PNR storage of data, which has been rejected by both the House of Representatives as well as the European Parliament on several occasions since 2010. In 2015, Dutch ruling parties VVD and PvdA were absolutely opposed to PNR as well. Back then, they called it a ‘holiday register’ and they themselves threatened to take to the European Court of Justice in case the PNR directive would be adopted. However, after the attacks in Paris and Brussels, it seemed that many political restraints had evaporated and in 2016, the PNR directive finally came about after all. Up to now however, the legally required necessity and proportionality of this directive have still to be demonstrated.
In the summer of 2017, the European Court of Justice issued an important ruling with regard to the similar PNR agreement between the EU and Canada. The Court declared this agreement invalid because it violates the right to privacy. Among other things, the Court held that the envisaged agreement must, “limit the retention of PNR data after the air passengers’ departure to that of passengers in respect of whom there is objective evidence from which it may be inferred that they may present a risk in terms of the fight against terrorism and serious transnational crime.” (See Opinion 1/15 (26 July 2017), par. 207.) Ever since this ruling, the European PNR directive is a legal uncertainty. Therefore, the Dutch government has valid ‘‘concerns about the future viability of the PNR directive” (see Note in response to report, p. 23, in Dutch). Privacy First expects that the current PNR directive will soon be submitted to the European Court of Justice for judicial review and will then be declared unlawful. Subsequently, a situation will arise that is similar to the one we have witnessed a few years ago with regard to the European Telecommunications Data Retention Act: as soon as this European directive will be annulled, the Dutch implementing provisions will equally be invalidated in interim injunction proceedings.
The current Dutch PNR legislative proposal seems unlawful a priori because of a lack of demonstrable necessity, proportionality and subsidiarity. The legislative proposal comes down to mass surveillance of mostly innocent citizens; in the 2016 Tele2 case the European Court already ruled that this type of legislation is unlawful. Thereupon the Netherlands pledged before the UN Human Rights Council “to ensure that the collection and maintenance of data for criminal [investigation] purposes does not entail massive surveillance of innocent persons.” The Netherlands now seems to renege on that promise. After all, a lot of completely unnecessary data of every airline passenger will be stored for years and can be used by various Dutch, European and even non-European government agencies. Moreover, the effectiveness of PNR has to date never been demonstrated, the minister himself affirmed: ‘‘There is no statistical support” (see Note in response to report, p. 8, in Dutch). The risk of unjust suspicion and discrimination (due to fallible algorithms used for profiling) under the proposed PNR system is serious, which also increases the likelihood of delays and missed flights for innocent passengers. All the while, wanted persons will often stay under the radar and choose alternative travel routes. Furthermore, the legislative proposal entirely fails to address the role and capabilities of secret services, which will be granted secret and shielded access to the central PNR database under the new Dutch Intelligence and Security Services Act. However, the most questionable aspect of the Dutch PNR legislative proposal is that it goes even two steps further than the European PNR directive itself: After all, it is the Dutch government's own decision to also store the data of passengers on all intra-EU flights. This is not obligatory under the PNR directive, and the Netherlands could have limited this to preselected flights (judged to be at risk) only. This would have been in line with the advice of most experts in this field who argue for targeted actions as opposed to mass surveillance. In other words, to focus on persons with a reasonable suspicion about them, in accordance with the principles of our democracy under the rule of law.
Privacy First Advice
Privacy First strongly advises you to reject the current legislative proposal and to replace it with a privacy-friendly version. In case this will lead to the European Commission referring the Netherlands to the European Court of Justice due to a lack of implementation of the present PNR directive, Privacy First would be confident this would end in a clear victory for the Netherlands. EU Member States simply cannot be expected to implement privacy-violating EU rules. This applies equally to the national implementation of relevant resolutions of the UN Security Council (in this case UNSC Res. 2396 (2017)) which is similarly at odds with international human rights law. In this respect, Privacy First has already warned of the abuse of the Dutch TRIP system (which is also used for PNR) by other UN Member States. In this regard, the Netherlands has its own responsibility under the Dutch Constitution as well as under international law.
Privacy First Foundation
Update 19 March 2019: Regrettably, today the House of Representatives has adopted the legislative proposal almost unchanged; only GroenLinks, SP, PvdD and Denk voted against. Unfortunately, a motion by GroenLinks and SP to provoke legal action by the European Commission against the Dutch government about the PNR directive was rejected. The only bright spot is the widely adopted motion for the judicial reassessment and possible revision of the PNR directive at a European political level. (Only PVV and FvD voted against this motion.) Next stop: the Senate.
Update 4 June 2019: despite sending the above letter for a second time and despite other critical input by Privacy First, the Senate today has unfortunately adopted the legislative proposal. Only GroenLinks, PvdD and SP voted against. Even in spite of the enormous error rates (false positives) of 99.7% that recently came to light in the comparable German PNR system, see https://www.sueddeutsche.de/digital/fluggastdaten-bka-falschtreffer-1.4419760. Meanwhile, large scale cases have been brought against the European PNR directive in Germany and Austria in order for the European Court of Justice to nullify it on account of violations of the right to privacy, see the German-English campaign website https://nopnr.eu and https://www.nrc.nl/nieuws/2019/05/15/burgers-in-verzet-tegen-opslaan-passagiersgegevens-a3960431. As soon as the European Court rules that the PNR directive is unlawful, Privacy First will start interim injunction proceedings in order for the Dutch PNR law to be rendered inoperative. Moreover, yesterday Privacy First has put the PNR law on the agenda of the UN Human Rights Committee in Geneva. On 1 and 2 July 2019, the overall human rights situation in the Netherlands (including violations of the right to privacy) will be critically reviewed by this Committee.
Writing a New Year’s Column about the state of affairs concerning the protection of everyone’s privacy weighs me down this year. With the exception of a few bright spots, privacy in the Netherlands and the rest of the world has greatly deteriorated. For a while it seemed that the revelations of Edward Snowden in 2013 about secret services tracking everyone’s online behavior would be a rude wake-up call for the world. It was thought that an increasing number of data breaches and a rising number of governments and companies getting hacked, would make people realize that large amounts of data stored centrally is not the solution. The Arab Spring in 2015 would bring about major change through the unprecedented use of (social) media.
The European Union successfully voted against the exchange of data relating to travel movements, paved the way for the current General Data Protection Regulation and seemed to become the shining alternative example under the guidance of Germany, a country known for its vigilance when it comes to privacy. Unfortunately, things turned out differently. Under the Obama administration, Snowden was shunned as a traitor and other whistleblowers were clamped down on harder than ever before. Julian Assange was forced into exile while murdering people with the use of drones and without any form of trial was implemented on a large scale. Extrajudicial killings with collateral damage... While the discussion was about waterboarding... Discussions on such ‘secondary topics’ have by now become commonplace in politics, and so has the framing and blaming of opponents in the polarized public debate (the focus is usually on the person rather than on the argument itself).
Looking back on 2018, Privacy First identifies a great number of areas where the breakdown of privacy is evident:
Government & privacy
In March, an advisory referendum in the Netherlands was held on the introduction of the so-called Tapping law. Immediately after that, the referendum was abrogated. This happened in a time of unprecedented technological possibilities to organize referendums in various ways in a shared democracy. That’s outrageous. The outcome of the referendum was not taken into account and the Tapping law was introduced just like that. Moreover, it turned out that all along, the Dutch Minister of the Interior had withheld an important report on the functioning of the Dutch General Intelligence and Security Service.
Apparently this was nothing to worry about and occurred without any consequences. The recent report by the Dutch State Commission on the (re)introduction of referendums will likely end up in a drawer, not to be looked at again.
Fear of losing one’s role and the political mood of the day are all too important in a culture in which ‘professional politicians’ are afraid to make mistakes, but which is full of incidents nonetheless. One’s job or profession comes first, representing citizens comes second. Invariably, incidents are put under a magnifying glass in order to push through binding legislation with a broad scope. Without the review of compliance with guiding principles such as necessity, purpose limitation, subsidiarity and proportionality. There is an ever wider gap between government and citizens, who are not trusted but are expected to be fully transparent towards that self-same government. A government that time and again appears to be concealing matters from citizens. A government that is required by law to protect and promote privacy, but is itself still the most prominent privacy-violator.
The medical establishment & privacy
In this area things got really out of hand in 2018. Through various coordinated media offensives, the EU and the member states are trying to make us believe in the advantages of relinquishing our right to physical integrity and our humanity. Sharing biometric data with the United States continues unabatedly. We saw the police calling for compulsory DNA databases, compulsory vaccination programs, the use of smart medicines with microchips and the phasing out of alternative therapies. Furthermore, health insurance companies cautiously started to cover genetic testing and increasingly doing away with medical confidentiality, the Organ Donation Act was introduced and microchips implanted in humans (the cyborg as the highest ideal in Silicon Valley propaganda) became ever more popular.
How long before microchips become compulsory for all citizens? All (domestic) animals in the EU have already preceded us. And then there’s the Electronic Health Record, which was first rejected in the Dutch Senate but has reappeared on the minister’s agenda via a detour. Driven by commercial interests, it is being rammed down the throats of general practitioners while alternatives such as Whitebox are not taken seriously. The influence of Big Pharma through lobbying with government bodies and participating in government working groups is particularly acute. They closely cooperate with a few IT companies to realize their ideal of large and centralized networks and systems. It’s their year-end bonus and growth at the expense of our freedom and well-being.
Media & privacy
Naturally, we cannot overlook ‘fake news’. One of the premises for having privacy is being able to form your own opinion and respect and learn from the opinions of others. Furthermore, independent left and right-wing media are essential in a democratic constitutional State. It's their task to monitor the functioning of elected and unelected representatives in politics and in government. Journalists should be able to penetrate into the capillaries of society in order to produce local, national and global news.
Ever since free news gathering came about, it has been a challenge to obtain news based on facts. It’s not always easy to distinguish a press service, PR and propaganda from one another. In times of rapid technological changes and new opportunities, they should be continuously reviewed according to the principles of journalism. That’s nothing new. What is new, however, is that the European Union and our own Minister for the Interior, Kajsa Ollongren, feel they’re doing the right thing by outsourcing censorship to social media companies that are active on a global scale and have proven to be unreliable.
While Facebook and Google have to defend themselves in court for spreading fake news and censoring accounts, the governments hand over the monitoring task to them. The privacy violators and fake news distributors as the guardians of our privacy and journalism. That’s the world upside down. By so doing, this minister and this government undermine the constitutional State and show disdain for intelligent citizens. It’s time for a structural change in our media system, based on new technologies such as blockchain and the founding of a government media office whose task is to fund all media outlets through citizens’ contributions, taking into account the media’s scope and number of members. So that concerns all media, including the so-called alternative media, which should not be censored.
Finance & privacy
The erosion of one’s privacy increasingly manifests itself at a financial level too. The fact of the matter is, that the tax authorities already know in detail what the spending pattern of all companies and citizens looks like. Thanks to the Tapping Law, they can now pass on this information in real-time to the secret services (the General Intelligence and Security Service is watching along). Furthermore, a well-intended initiative such as PSD2 is being introduced in a wholly improvident and privacy-unfriendly way: basic conditions relating to the ownership of bank details (of citizens, account holders) are devoid of substance. Simple features such as selective sharing of banking details, for example according to the type of payment or time period, are not available. What’s more, payment details of third parties who have not given their consent, are sent along.
In the meantime, the ‘cash = criminal’ campaign goes on relentlessly. The right to cash and anonymous payment disappears, despite even the Dutch Central Bank now warning that the role of cash is crucial to our society. Privacy First has raised its opinion on this topic already in 2016 during a public debate. The latest development in this regard is the further linking of information through Big Data and profiling by debt-collecting agencies and public authorities. Excluding citizens from the electronic monetary system as a new form of punishment instead of letting them pay fines is a not so distant prospect. In this regard, a lot of experimentation is going on in China and there have been calls in Europe to move in the same direction, supposedly in order to fight terrorism. In other words, in the future it will become increasingly difficult to raise your voice and organize against abuse of power by governments and companies: from on high it takes only the press of a button and you may no longer be able to withdraw cash, travel or carry out online activities. In which case you have become an electronic outcast, banished from society.
Public domain & privacy
In 2018, privacy in public space has all but improved. Whereas 20 years ago, the Netherlands was deemed too small to require everyone out on the streets to be able to identify themselves, by now, all governments and municipalities in Europe are developing ‘smart city’ concepts. If you ask what the benefits and use of a smart city are (beyond the permanent supervision of citizens), proponents will say something vague about traffic problems and that the 'killer applications' will become visible only once the network of beacons is in place. In other words, there are absolutely no solid figures which would justify the necessity, subsidiarity and proportionality of smart cities. And that’s not even taking basic civil rights such as privacy into consideration.
Just to give a few examples:
- ANPR legislation applies from 1 January 2019 (all travel movements on public roads will be stored in a centralized police database for four weeks)
- A database consisting of all travel movements and stays of European citizens and toll rates as per 2023
- Emergency chips in every vehicle with a two-way communication feature (better known as spyware) as per 1 January 2019
- Cameras and two-way communication in public space, built into the lampposts among other objects as part of smart city projects
- A decision to introduce additional cameras in public transport as per 2019
- The introduction of Smart Cities and the introduction of unlimited beacons (doesn’t it sound so much better than electronic concentration camp posts?)
- Linking together all traffic centers and control rooms (including those of security companies operating on the private market)
- Citizens are permanently monitored by invisible and unknown eyes.
Private domain & privacy
It’s well known that governments and companies are keen to take a peek in our homes, but the extent to which this was being advanced last year, was outside of all proportion. Let’s start with energy companies, who foist compulsory smart meters on citizens. By way of ‘appointment to install a smart meter’, which you didn’t ask for, it’s almost impossible to stay clear of red tape. After several cancellations on my part and phone calls to energy provider Nuon, they simply continued to push forward. I still don’t have a smart meter and it will stay like that.
Once again Silicon Valley featured prominently in the news in 2018. Unelected dictatorial executives who are no less powerful than many a nation state, promote their utopias as trendy and modern among citizens. Self-driving cars take the autonomy and joy away from citizens (the number of accidents is very small considering the millions of cars on the road each day), while even children can tell that a hybrid approach is the only option. The implementation of smart speakers by these social media companies is downright spooky. By bringing smart toys onto the market, toy manufacturers equally respond to the needs that we all seem to have. We can all too readily guess what these developments will mean for our privacy. The manipulation of facts and images as well as distortion, will starkly increase.
Children & privacy
Children and youths represent the future and nothing of the above bodes well for them. Screen addiction is sharply on the rise and as children are being raised amidst propaganda and fake news, much more attention should go out to forming one’s own opinion and taking responsibility. Centralized pupil monitoring systems are introduced indifferently in the education system, information is exchanged with parents and not having interactive whiteboards and Ipads in the classroom has become unthinkable. The first thing children see every single day, is a screen with Google on it... Big Brother.
Dependence on the internet and social media results in impulsive behaviour among children, exposes them to the madness of the day and affects their historical awareness and ability to discern underlying links. The way of thinking at universities is becoming increasingly one-sided and undesirable views are marginalized. The causes of problems are not examined, books are not read though there is certainly no lack of opinions. It’s all about making your voice heard within the limits of self-censorship that’s in force in order to prevent becoming the odd one out in the group. The same pattern can be identified when it comes to forming opinions in politics, where discussing various issues based on facts seems no longer possible. Not to mention that the opinions of citizens are considered irrelevant by our politicians. Good quality education focused on forming opinions and on creating self-reflective minds instead of a robot-way of thinking, is essential for the development of a healthy democracy.
Are there any positive developments?
It's no easy task to identify any positive developments in the field of privacy. The fact is that the introduction of the GDPR and the corresponding option to impose fines has brought privacy more sharply into focus among companies and citizens than the revelations of Snowden have been able to do. The danger of the GDPR, however, is that it narrows down privacy to data protection and administrative red tape.
Another positive development is the growing number of (as of yet small) initiatives whereby companies and governments consider privacy protection as a business or PR opportunity. This is proved by the number of participants in the 2019 Dutch Privacy Awards. Recurring themes are means of anonymous communication (email, search engines, browsers), possible alternatives to social networks (messaging services like WhatsApp, Facebook, Instagram and Twitter) on the basis of subscriptions, blockchain technology and privacy by design projects by large organizations and companies.
Privacy First has teamed up with a few top quality pro bono attorneys who are prepared to represent us in court. However, judges are reluctant to go off the beaten track and come up with progressive rulings in cases such as those concerning number plate parking, average speed checks, Automatic Number Plate Recognition, the Tapping Law, etc. For years, Privacy First has been suffering from a lack of funding. Many of those who sympathize with us, find the topic of privacy a bit eerie. They support us morally but don’t dare to make a donation. After all, you draw attention to yourself when you’re concerned with issues such as privacy. That’s how bad things have become; fear and self-censorship... two bad counsellors! It’s high time for a government that seriously deals with privacy issues.
Constitutional reform should urgently be placed on the agenda
Privacy First is a great proponent of constitutional reform (see our 2017 New Year’s column about Shared Democracy), based on the principles of the democratic constitutional State and the European Convention on Human Rights (ECHR). Our democracy is only 150 years old and should be adapted to this current day and age. This means that the structure of the EU should be changed. Citizens should take on a central and active role. Government policies should focus on technological developments in order to reinforce democracy and formulate a response to the concentration of power of multinational companies.
Privacy First argues that the establishment of a Ministry of Technology has the highest priority in order to be able to stay up to date with the rapid developments in this field and produce adequate policies accordingly. It should live up to the standards of the ECHR and the Dutch Constitution and avoid becoming a victim of the increasing lobbying efforts in this sector. Moreover, it is time for a Minister of IT & Privacy who stays up to date on all developments and acts with sufficient powers and in accordance with the review of a Constitutional Court.
The protection of citizens’ privacy should be facilitated and there should be privacy-friendly alternatives for current services by technology companies. For 2019, Privacy First has a few tips for ordinary citizens:
- Watch out for and stay away from ‘smart’ initiatives on the basis of Big Data and profiling!
- Keep an eye on the ‘cash = criminal’ campaign. Make at least 50% of your payments anonymously in cash.
- Be cautious when communicating through Google, Apple, Facebook and Microsoft. Look for or develop new platforms based on Quantum AI encryption and use alternative browsers (TOR), networks (VPN) and search engines (Startpage).
- Be careful when it comes to medical data and physical integrity. Use your right for there to be no exchange of medical data as long as initiatives such as Whitebox are not used.
- Be aware of your right to stay anonymous, at home and in public space. Campaign against toll payment, microchips in number plates, ANPR and number plate parking.
- Be aware of your legal rights to bring lawsuits, for example against personalized waste disposal passes, camera surveillance, etc.
- Watch out for ‘smart’ meters, speakers, toys and other objects in the house connected to the internet. Purchase only privacy by design solutions with privacy enhanced technology!
The Netherlands and Europe as guiding nations in the field of privacy, with groundbreaking initiatives and solutions for apparent contradictions concerning privacy and security issues - that’s Privacy First's aim. There’s still a long way to go, however, and we’re being blown off course ever more. That’s due in part because a comprehensive vision on our society and a democracy 3.0 is lacking. So we continue to drift rudderless, ending up in the big manipulation machine of large companies one step at a time. We need many more yellow vests before things change. Privacy First would like to contribute to shaping and promoting a comprehensive, positive vision for the future. A future based on the principles that our society was built on and the need for greater freedom, with all the inevitable restrictions this entails. We will have to do it together. Please support Privacy First actively with a generous donation for your own freedom and that of your children in 2019!
To an open and free society! I wish everyone a lot of privacy in 2019 and beyond!
Bas Filippini, Privacy First chairman
A group of civil society organizations is bringing a case against the Dutch government because of System Risk Indication, better known by the abbreviation SyRI. According to the plaintiffs, this risk profiling system is a black box that should be stopped as it forms a risk to the democratic rule of law.
The coalition of plaintiffs consists of the Netherlands Committee of Jurists for Human Rights (NJCM), the Dutch Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten), Privacy First, the KDVP Foundation (privacy in mental healthcare) and the National Clients Council (LCR). Two well-known authors, Tommy Wieringa and Maxim Februari, have in their individual capacities joined the case as plaintiffs. As ‘ambassadors’ to this lawsuit, they have fiercely criticized SyRI on multiple occasions.
The proceedings are carried out by Deikwijs Attorneys under the guidance of the Public Interest Litigation Project (PILP) of the NJCM.
Trawl net actions on the basis of secret algorithms targeting innocent citizens
SyRI links together on a large scale personal data of innocent citizens from databases of public authorities and companies. With the use of secret algorithms, citizens are subsequently subjected to a risk analysis. When there is an increased risk of breaking one of the many laws that SyRI covers, individuals are included in the Risk Reports Register, which is accessible to many government agencies.
SyRI is a black box that poses a major threat to the democratic rule of law. Citizens who are being examined through SyRI without any justification, have absolutely no idea which of their data are being used for analyses, what kind of analyses are being carried out and what actually determines whether or not they are a ‘risk’. Because SyRI works surreptitiously, citizens are not in a position to refute any incorrect flagging that may concern them.
According to the coalition, SyRI is in breach of various fundamental rights while it simultaneously undermines the relationship of trust between citizens and those in power. Citizens are suspect from the very start and all of the information that they share with public authorities, may secretly be used against them without imputation or concrete ground.
Ministry refuses to operate in a transparent manner
Despite fundamental objections from the Dutch Council of State (Raad van State) and the Dutch Data Protection Authority about the lawfulness of the system, at the end of 2014 the legislation for SyRI was rubber-stamped by the Dutch Senate and the House of Representatives. However, SyRI has been in use ever since 2008 already. Since then, dozens of investigations have been carried out and this included examining entire neighborhoods in several Dutch cities. Once the system was specified in law, it has been applied in Eindhoven and Capelle aan den IJssel among other places. It was recently announced that SyRI will be used in the Rotterdam neighborhoods of Bloemhof en Hillesluis and in the Haarlem neighborhood of Schalkwijk.
A FOIA request submitted by the coalition has resulted in barely any information concerning the dozens of SyRI investigations that have been carried out prior to and after the system had been laid down in law in 2014. The Dutch Ministry of Social Affairs is unwilling to provide insight into its practices arguing that, by disclosing the data and risk models that are used in SyRI, cunning citizens would become aware what to look out for when they commit fraud. The claimants, in their turn, assert that this is not in line with the obligation to inform and the right to a fair trial.
In the context of this lawsuit, a public information campaign called ‘Bij Voorbaat Verdacht’ (‘Suspect From The Very Start’) has been launched. On the (Dutch) campaign website you can find updates about the legal proceedings as well as a simplified summary of the subpoena. The complete subpoena (in Dutch) can be found on the website of Deikwijs Attorneys (pdf). Click HERE for the English version on the website of PILP (pdf).
Update 16 October 2018: the District Court of The Hague has allowed the Dutch Federation of Trade Unions (FNV) as co-plaintiff in the lawsuit.
After numerous lawsuits in various European countries, the decision has finally been made: in a break-through ruling, the European Court of Justice has decided this week that a general requirement to retain telecommunications data (data retention) is unlawful because it is in violation of the right to privacy. This ruling has far-reaching consequences for surveillance legislation in all EU member States, including the Netherlands.
Previous data retention in the Netherlands
Under the 2009 Dutch Data Retention Act, the telecommunications data (telephony and internet traffic) of everyone in the Netherlands used to be retained for 12 months and 6 months, respectively, for criminal investigation purposes. This legislation stemmed from the 2006 European Data Retention Directive. However, in April 2014 the European Court of Justice declared this European Directive invalid because it violates the right to privacy. Subsequently, former Dutch minister of Security and Justice Ivo Opstelten refused to withdraw the Dutch Data Retention Act, after which a broad coalition of Dutch organizations and companies demanded in interim injunction proceedings that the Act would be rendered inoperative. The claimant organizations were the Privacy First Foundation, the Dutch Association of Defence Counsel (NVSA), the Dutch Association of Journalists (NVJ), the Netherlands Committee of Jurists for Human Rights (NJCM), Internet provider BIT and telecommunications providers VOYS and SpeakUp. Boekx Attorneys in Amsterdam took care of the proceedings, and successfully so: rather uniquely (laws are seldomly rendered inoperative by a judge, let alone in interim injunction proceedings), on 11 March, 2015, the Dutch district court in The Hague repealed the entire Act at once. The Dutch government decided not to appeal the ruling, which has been final since then. Consequently, all telecom operators concerned have deleted the relevant data. In relation to criminal investigations and prosecutions, so far this does not seem to have led to any problems.
European Court makes short shrift of mass storage once and for all
Unfortunately, the April 2014 decision of the European Court left some margin for interpretation under which broad, general retention of everyone’s telecommunications data could still be allowed, for example through close judicial supervision before access and use of those data. In a Swedish and a British case about data retention, the European Court has now ensured full clarity in favour of the right to privacy of every innocent person on European territory:
"The Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication’’, the Court judges.
In other words: mass storage of everyone’s data for criminal investigation purposes is unlawful. After all, according to the Court this ‘‘exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society’’.
In conventional language, the Court basically says that such legislation doesn’t belong in a free democracy under the rule of law, but in a totalitatrian dictatorship instead. And this is exactly the raison d'être of the Charter of Fundamental Rights of the European Union (which was inspired by universal human rights), on which the verdict of the Court is based.
Consequences for the Netherlands
Recently the current Dutch minister of Security and Justice, Ard van der Steur, has again presented to the Dutch House of Representatives a legislative proposal to reintroduce a broad, general telecommunications retention Act. Moreover, a similar legislative proposal pending in the Dutch Senate concerns the recognition and retention of number plate codes of all cars in the Netherlands (i.e. everyone’s travel movements and location data). Following the EU Court ruling, both legislative proposals are unlawful in advance on account of violation of the right to privacy. The same goes for planned mass storage of data that flow in and out of the Netherlands through large internet cables under the new Dutch Intelligence and Security Services Act (and the international exchange thereof), the possible future reintroduction of central databases with everyone’s fingerprints, national DNA databases, national records which include everyone’s financial transactions, etc. etc.
Following the EU Court ruling, the Dutch government can draw one conclusion only: both the legislative proposal that regards the new telecommunications retention Act as well as the legislative proposal that relates to the registration on a massive scale of number plate codes, are to be withdrawn this instant. Otherwise Privacy First will again enforce this in court and will do likewise with every other legislative proposal that threathens to violate the right to privacy of innocent citizens on a large scale.
Privacy First wishes you happy holidays and a privacy-friendly 2017!
After years of legal proceedings against the storage of fingerprints under the Dutch Passport Act — one of the gravest privacy violations in the Netherlands — Privacy First and 19 co-plaintiffs were declared inadmissible by the Dutch Supreme Court.
Since May 2010, a large-scale lawsuit against the central storage of fingerprints under the Dutch Passport Act by Privacy First and 19 co-plaintiffs (Dutch citizens) has been under way. This so-called 'Passport Trial' was a civil case because with regard to the merits of the case, individual citizens were not able to turn to an administrative court.
Citizens could only go to an administrative court if they would first provoke an individual decision: an administrative refusal to issue a passport or ID card after an individual refusal to give one's fingerprints. Hence, they could only litigate on an administrative level if they were prepared to live without a passport or ID card for years.
Moreover, the provision in the Passport Act on the central storage of fingerprints (Article 4b) still hasn't entered into force. Therefore, the administrative courts were unauthorized to assess this provision. Moreover, contrary to other countries, a direct administrative appeal against Dutch law (Acts and statutes) isn't possible in the Netherlands.
Subsequently, an administrative court would only have been able to individually and indirectly ("exceptionally") assess this provision on the basis of higher privacy legislation after that same provision would have entered into force, that is to say, after the central storage (and exchange) of everyone's fingerprints would have become a fait accompli.
To prevent such a massive violation of privacy, only the civil courts were authorized to rule in the case of Privacy First et al. For many years civil courts have been the perfect type court for the direct assessment of national legislation on the basis of higher (privacy) legislation, even if the national legislation in question has not yet entered into force but does entail an imminent privacy violation.
As a relevant foundation, Privacy First was able to take civil action in the general interest, on behalf of the Dutch population at large. Since the early 90s this is possible via a special procedure under Article 3:305a of the Dutch Civil Code: the so-called "action of general interest." Up until May 2010, when Privacy First et al. summoned the Dutch government, the Dutch Supreme Court seemed to have given the green light for this.
However, in July 2010, the Supreme Court disregarded its earlier case law by declaring that interest groups can only turn to a civil court if individual citizens cannot pursue legal proceedings before an administrative court. But in Privacy First's Passport Trial, citizens could not apply to an administrative court. So Privacy First et al. still had a very strong case. What's more, the admissibility criteria of the Supreme Court seemed not to apply to actions of general interest, but merely to 'group actions' that are organized on behalf of a specific group of people instead of the entire population.
In February 2011, the district court of The Hague wrongly declared our Passport Trial inadmissible. This decision was subsequently appealed by Privacy First et al. Courtesy also of the pressure exerted by this appeal, the central (as well as municipal) storage of fingerprints was largely discontinued in the summer of 2011 and the taking of fingerprints for Dutch ID Cards was halted altogether at the start of 2014.
In February 2014, The Hague Court of Appeal declared Privacy First — in the general interest — admissible after all and judged that the central storage of fingerprints under the Passport Act was in violation of the right to privacy. The Dutch Minister of the Interior, Ronald Plasterk, was not amused and demanded an appeal in cassation before the Dutch Supreme Court.
Against all odds (as Privacy First had virtually all Dutch legislation, legislative history, case law and legal literature on its side), on May 22, 2015, the Dutch Supreme Court declared Privacy and its 19 co-plaintiffs inadmissible once more. According to the Supreme Court, the citizens can turn to an administrative court, which has also blocked the road to a civil court for Privacy First.
All this while in the last few years it had been established that the co-plaintiffs could not turn to an administrative court, at least not for the review of Article 4b of the Passport Act concerning the central storage of fingerprints. In innumerable administrative cases over the past few years, judges of various Dutch administrative courts have declined jurisdiction in this respect. That meant that for Privacy First as an interested organization, the road to an administrative court was equally blocked.
The fact that the Supreme Court rules as if that isn't so is simply incomprehensible. Furthermore, litigating citizens can neither be expected to get by without a passport for years, nor can they be expected to first let their privacy be violated (giving up fingerprints, even for storage) before a judge can determine whether this is legal. The fact that the Supreme Court seems to require this just the same is not just inconceivable (as well as in breach of its own case law) but also reprehensible.
Gap in the legal protection
The ruling by the Dutch Supreme Court creates a legal vacuum in the Netherlands: if citizens or organizations want massive and imminent privacy violations, such as the central storage of fingerprints under the Passport Act, to be reviewed, then they may not be able to turn to either a civil or an administrative court. This creates a gap in the legal protection that has been in place in the Netherlands over the past few decades.
The Supreme Court may now have passed on this case to the highest Dutch administrative court (the Council of State), but it's all but certain that the Council of State is able and still prepared to review the central storage of fingerprints under the Passport Act. In light of this, the Supreme Court should have waited for the ruling by the Council of State in four current and parallel administrative cases revolving around the Passport Act, prior to coming up with its ruling in Privacy First's Passport Trial. By not doing this, the Supreme Court has taken a huge risk, has prematurely stepped into the shoes of the Council of State and has put the Council of State under severe pressure.
If the Council of State were soon to judge differently than the Supreme Court (that is to say, if the Council of State would judge that it is equally unauthorized to rule in this matter), the two institutions would make an enormous blunder and would create a huge gap in the legal protection in the Netherlands, in contravention of the European Convention on Human Rights (ECHR)
Multiple ECHR violations
Privacy First et al. await the ruling of the Council of State with considerable anticipation. In the meantime, Privacy First et al. will already prepare to file a complaint with the European Court of Human Rights in Strasbourg on account of a breach of Article 8 ECHR (right to privacy) and Articles 6 and 13 EHCR (right to access to justice and an effective legal remedy). Despite the Kafkaesque anti-climax before the Dutch Supreme Court, a European conviction of the Netherlands would thus be on the cards once the complaint has been filed.
Read the entire judgment by the Dutch Supreme Court HERE (in Dutch).
Click HERE for our entire case file.
A similar version of this article was published on http://www.liberties.eu/en/news/bad-day-for-privacy-in-the-netherlands.