Financial Privacy & PSD2

The world is hit exceptionally hard by the coronavirus. This pandemic is not only a health hazard, but can also lead to a human rights crisis, endangering privacy among other rights.

The right to privacy includes the protection of everyone’s private life, personal data, confidential communication, home inviolability and physical integrity. Privacy First was founded to protect and promote these rights. Not only in times of peace and prosperity, but also in times of crisis.

Now more than ever, it is vital to stand up for our social freedom and privacy. Fear should not play a role in this. However, various countries have introduced draconian laws, measures and infrastructures. Much is at stake here, namely preserving everyone’s freedom, autonomy and human dignity.

Privacy First monitors these developments and reacts proactively as soon as governments are about to take measures that are not strictly necessary and proportionate. In this respect, Privacy First holds that the following measures are in essence illegitimate:
- Mass surveillance
- Forced inspections in the home
- Abolition of anonymous or cash payments
- Secret use of camera surveillance and biometrics
- Every form of infringement on medical confidentiality.

Privacy First will see to it that justified measures will only apply temporarily and will be lifted as soon as the Corona crisis is over. It should be ensured that no new, structural and permanent emergency legislation is introduced. While the measures are in place, effective legal means should remain available and privacy supervisory bodies should remain critical.

Moreover, in order to control the coronavirus effectively, we should rely on the individual responsibility of citizens. Much is possible on the basis of voluntariness and individual, fully informed, specific and prior consent.

As always, Privacy First is prepared to assist in the development of privacy-friendly policies and any solutions based on privacy by design, preferably in collaboration with relevant organizations and experts. Especially in these times, the Netherlands (and the European Union) can become an international point of reference when it comes to fighting a pandemic while preserving democratic values and the right to privacy. This is the only way that the Corona crisis will not be able to weaken our world lastingly, and instead, we will emerge stronger together.

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The coronavirus has plunged the whole world into a deep crisis and governments do their utmost to control the dissemination. As I wrote in my previous column, it is important especially now to keep our heads cool and to protect our civil rights and privacy. A short and temporary infringement of our privacy in the general interest may be legitimate. The western model should imply a partial, temporary lockdown, lasting at most twice the incubation period so as to control the spread of the virus based on increased testing, and to facilitate the healthcare system, augmenting the number of critical care beds.

Moreover, this should be a participatory lockdown, based on voluntary participation and citizens’ individual responsibility. This is only logical, as trust is the cornerstone of our democratic society, even though at times there is a lack of it. This concerns trust in fellow citizens, the government and first of all, oneself. At this point in time I have a lot of confidence in the Dutch approach, which is a combination of common sense and relying on healthcare experts. Ultimately, we will have to learn to live with this virus and control potential outbreaks.

To measure is to know and therefore it is essential to scale up the number of tests with the right test equipment without delay. There are tests which can indicate quickly whether someone is infected. It is interesting to note that in Germany, where practically everyone with symptoms is being tested, the percentages of gravely ill and deceased people are considerably lower than in countries where testing is very limited. For policy makers and politicians it is thus very important to take the right decisions on the basis of facts.

If not, there will be a long-standing and emotionally-driven struggle, the encroachment on our freedom will not be short and temporary and power will shift disproportionately into the hands of the State. Such a scenario will see us move towards a forced surveillance society (see the current situation Israel is in, the newly introduced legislation in the UK as well as EU proposals with regard to telecom location data), characterised by the abolishment of anonymous (cash) payments (see the current guidelines in the Dutch retail sector), the dissolution of medical confidentiality and physical integrity in the context of potential virus infections (compulsory vaccinations and apps) and censorship of any alternative or undesired sources of information that counter the prevailing narrative. Besides, commercial interests of IT and pharmaceutical companies would come to dominate even more.

In the best case scenario, both society and the economy will soon be able to revive on the basis of individual and aggregate test results, with this lesson to bear in mind: let’s not lose the importance of our freedom, health and individual responsibility out of sight. All of a sudden, citizens have been left to their own devices and this experience will make them realize that life is not malleable and our society is not a mere paper exercise. This situation could lead to increased civic participation and less government, i.e. greater focus on critical functions. When we take a look around now, we see positive-minded, well-informed and responsible citizens and there is no need to keep focusing on a handful of exceptions. That is, as long as the measures in place are comprehensible, measurable and very temporary, and are not packaged into structural legislation, thereby misusing the crisis in order to grant certain organizations and sectors greater influence and power.

Finally, it’s worth realizing that all entrepreneurial Dutchmen without whom we would not be able to pay our fine public services, also deserve a round of applause. And perhaps the idea of a basic income for every citizen could be reviewed once more. In other words: let’s aim for more individual decisions in a freer society that is supported by technology and common sense!

Here’s to a free 2020!

Bas Filippini,
Privacy First chairman
(in personal capacity)

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Many questions have been raised about Privacy First’s point of view in relation to the protection of privacy in crisis situations, such as the one we’re currently experiencing as a result of the coronavirus. As indicated previously, I support the precautionary principle, i.e., we don’t know what we don’t know and what in fact is effective. A strict, western-style approach on the basis of a temporary (partial) lockdown for a (very) short period of time will drastically flatten the coronavirus curve and will make sure the healthcare system does not collapse. This also allows us to gain time to find a vaccine or medicine. We still don’t know exactly what kind of virus we’re dealing with, how it came into existence and how to control it.

Our society is built on trust. In a crisis situation like we’re in now, authorities will have to take temporary crisis measures which allow citizens to do the right thing voluntarily and on the basis of trust. This may temporarily restrict privacy, such as freedom of movement and/or physical integrity (think of being in quarantine). The government can choose to have a full or partial lockdown. Making this choice, it is essential that we rely on the norms and values of our free, democratic society, and that there is trust both in the citizenry and in the means and measures that may be employed. Ideally, this would result in a participatory lockdown based on everyone’s freedom and sense of responsibility.

Past experience shows that when there is open and honest communication, citizens act responsibly and in the general interest. This implies that draconian and structural legislative measures that restrict freedom can be kept at bay, much to the benefit of the people and the economy. In this respect, it is significant that practically all companies, institutions and organizations currently comply with the protocols, and even do more than what is required. After a period of inaction, the Dutch government has decided to act and take responsibility, which is most welcome. After all, this concerns a potentially great number of very sick patients and fatalities, including many elderly and vulnerable people.

Our government has opted for a democratic instead of a dictatorial approach, and that is to be applauded. So let’s use this moment to keep our head cool instead of infringing upon everyone’s freedom and right to privacy, freedom of movement, bodily integrity and cash payments. I see there is a bitter wind sweeping through Denmark, where a coronavirus emergency law has been rushed through, allowing the authorities to force people to be vaccinated (even though there is no vaccine yet), and in France too, where permanent crisis measures seem to have been implemented. All this is incompatible with a decent society and creates misplaced precedents. Let’s act in the general interest on the basis of trust and everyone’s own responsibility. For that, we need neither to be locked up, nor do we want to see the army in the streets, or any other draconian measures or laws to be put in place.

Let’s strive for a free and trustworthy Netherlands and Europe.

Bas Filippini,
Privacy First chairman
(in personal capacity)

In the context of the National Privacy Conference organized by Privacy First and the Dutch Platform for the Information Society (ECP), today the Dutch Privacy Awards have been handed out. These Awards offer a podium to organizations that consider privacy as an opportunity to positively distinguish themselves and want privacy-friendly entrepreneurship and innovation to become a benchmark. The winners of the 2020 Dutch Privacy Awards are Publicroam, NUTS and Candle.

Winner: Publicroam

Safe and easy access to WiFi everywhere for guest users

Most people in libraries, hotels, coffee bars and other public places log onto the local WiFi network in order to save on mobile data and to not rely on mobile networks which indoors may not be available everywhere. Often, WiFi networks operate on the basis of a single, local password, indicated on tables and screens. This makes the digital activities of users vulnerable in more ways than one, with all the ensuing nasty consequences. On top of that, users may not be informed about what the internet provider does with their personal data. It is said that the trade in personal data is by now more profitable than the trade in oil.

These risks were first identified by educational institutions and later by public authorities. This led to the creation of international roaming services like Eduroam and Govroam. But why aren’t such services available everywhere and to everyone? Publicroam set out to change just that and is being welcomed in more and more places. And rightfully so, according to the Privacy Awards expert panel. Several large municipalities and organizations (all libraries in the Netherlands among them) are already connected to Publicroam, or will be soon. In and of itself this facility is not a completely new solution, but the expert panel is particularly impressed by the fact that it can offer great advantages to literally everyone in the country – and possibly beyond – and can therefore have a huge impact on what we’re used to: one account which allows all users to go online automatically and securely, with serious respect for privacy ensured.

It’s possible after all: sound business initiatives that respect privacy; Publicroam is proof of this.

Winner: NUTS

Decentral infrastructure for privacy-friendly communication in healthcare

The NUTS Foundation is an initiative which aims to offer a privacy-friendly solution to identity management and sharing personal data in healthcare environments. It entails that individuals keep control over which healthcare data may be shared between healthcare providers. The NUTS Foundation has laid down its principles in a manifesto which all participants should ascribe to and which states that all software that’s being developed should meet the demands of open source. The result that the NUTS Foundation is striving for is a decentral system which keeps control over personal health information in the hands of the people involved.

The services offered by the decentral network are based on the principles of privacy by design. Identity management solutions contribute to irrefutably establishing the identity of individuals concerned. The decentral approach is in line with the digital healthcare architecture which is currently in the making and is also partly being introduced already. In this way, healthcare information components can use the decentral facilities that are being realized through NUTS.

In the eyes of the expert panel, the NUTS Foundation is a strong example of an initiative which not only looks at privacy issues in a comprehensive way but creates concrete solutions to these issues as well. The open source community that the NUTS Foundation is bringing to fruition, prevents vendor-lock-in in crucial areas of the digital healthcare infrastructure. Emerging digital Personal Healthcare Areas can equally make use of the decentral administrative provisions which NUTS is working towards. The rationale behind NUTS – creating a utility for a crucial part of the digital healthcare architecture – particularly appeals to the expert panel. Expanding the foundation, which currently by and large relies on a single company, will further increase the support for this initiative.

In order to give the NUTS Foundation the opportunity to further realize its ideals and to propagate these more widely, the expert panel has decided to confer this year’s Dutch Privacy Award for business solutions to the NUTS Foundation.

Winner: Candle

Privacy-friendly smart home solution

Candle is a reaction to a risk analysis (privacy by design) to Internet of Things products which unnecessarily connect to a cloud server. It’s a project which concentrates on developing alternative smart systems in and around the home, based on the principle that connection to the internet is unnecessary. Candle started off as a project organization run by students from universities and colleges of higher education as well as by artists’ collectives who aimed at developing practical hardware solutions combined with open source software. Various domestic appliances such as central heating, cameras, CO2 sensors and other applications can easily be connected with one another. A switch is used to make contact with an external network. Users make a deliberate choice when they import and export emails and other data.

Candle shows that it’s very well feasible to create a Smart solution without Big Tech companies and their data driven models. Meanwhile, there are various concept solutions which companies can actually put into practice. In its core, Candle is privacy by design and it opens people’s eyes to alternative smart systems.

"The market for ethical technology will grow in much the same way as the market for biological food has grown enormously. But how do we boost this market? That’s the challenge. The GDPR has ploughed the earth. Now it’s time to sow and entrust this concept to consumers", comments Candle.

Nominations

There are four categories in which applicants are awarded:

1. the category of Consumer solutions (business-to-consumer)

2. the category of Business solutions (within a company or business-to-business)

3. the category of Public services (public authority-to-citizen)

4. The incentive prize for a ground breaking technology or person.

From the various entries, the independent expert panel chose the following nominees per category:

During the National Privacy Conference the nominees presented their projects to the audience in Award pitches. Thereafter, the Awards were handed out. Click HERE for the entire expert panel report (pdf), which includes participation criteria and explanatory notes on all the nominees and winners.

National Privacy Conference

The National Privacy Conference is a ECP|Platform for the Information Society and Privacy First initiative. Once a year, the conference brings together Dutch industry, public authorities, the academic community and civil society with the aim to build a privacy-friendly information society. The mission of both the National Privacy Conference and Privacy First is to turn the Netherlands into a guiding nation in the field of privacy. To this end, privacy by design is key.

These were the speakers during the 2020 National Privacy Conference in successive order:

- Monique Verdier (vice chairman of Dutch Data Protection Authority)
- Richard van Hooijdonk (trendwatcher/futurist) and Bas Filippini (founder and chairman of Privacy First)
- Tom Vreeburg (IT-auditor)
- Coen Steenhuisen (privacy advisor at Privacy Company)
- Peter Fleischer (global privacy counsel at Google)
- Sander Klous (professor in Big Data Eco Systems, University of Amsterdam)
- Kees Verhoeven (Member of the Dutch House of Representatives for D66).

Expert panel of the Dutch Privacy Awards

The independent expert award panel consists of privacy experts from different fields:

• Bas Filippini, founder and chairman of Privacy First
• Paul Korremans, partner at Comfort Information Architects and Privacy First board member
• Marie-José Bonthuis, owner of IT’s Privacy
• Esther Janssen, attorney at Brandeis Attorneys specialized in information law and fundamental rights
• Marc van Lieshout, managing director at iHub, Radboud University Nijmegen
• Melanie Rieback, CEO and co-founder of Radically Open Security
• Nico Mookhoek, privacy lawyer and owner of NMLA
• Wilmar Hendriks, founder of Control Privacy and member of the Privacy First advisory board
• Alex Commandeur, senior advisor at BMC Advies.

In order to make sure that the award process is run objectively, the panel members may not judge on any entry of his or her own organization.

Privacy First organizes the Dutch Privacy Awards with the support of the Democracy & Media Foundation and in collaboration with ECP. Would you like to become a partner of the Dutch Privacy Awards? Then please contact Privacy First!

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.

Turning point

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.

Public debate

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'.

Practical information

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.

On July 1 and 2, 2019, the Netherlands will be examined in Geneva by the United Nations Human Rights Committee. This UN body is tasked with supervising the compliance of one of the oldest and most important human rights treaties in the world: the International Covenant on Civil and Political Rights (ICCPR). Each country which is a contracting party to the ICCPR is subject to periodical review by the UN Human Rights Committee. At the beginning of next week, the Dutch government must answer before the Committee for various current privacy issues that have been put on the agenda by Privacy First among others.

The previous Dutch session before the UN Human Rights Committee dates from July 2009, when the Dutch minister of Justice Ernst Hirsch Ballin had to answer for the then proposed central storage of fingerprints under the new Dutch Passport Act. This was a cause for considerable criticism of the Dutch government. Now, ten years on, the situation in the Netherlands will be examined once more. Against this background, Privacy First had submitted to the Committee a critical report (pdf) at the end of 2016, and has recently supplemented this with a new report (pdf). In a nutshell, Privacy First has brought the following current issues to the attention of the Committee:

- the limited admissibility of interest groups in class action lawsuits 

- the Dutch ban on judicial review of the constitutionality of laws

- profiling

- Automatic Number Plate Recognition (ANPR)

- border control camera system @MIGO-BORAS

- the Dutch public transport chip card ('OV-chipkaart') 

- Electronic Health Record systems

- possible reintroduction of the Telecommunications Data Retention Act

- the new Dutch Intelligence and Security Services Act (‘Tapping Law’)

- PSD2

- Passenger Name Records (PNR)

- the Dutch abolition of consultative referendums

- the Dutch non-recognition of the international prohibition of propaganda for war.

The entire Dutch session before the Committee can be watched live on UN Web TV on Monday afternoon, July 1, and Tuesday morning, July 2. In addition to privacy issues, several Dutch organizations have put numerous other human rights issues on the agenda of the Committee; click HERE for an overview, which also features the previously established List of Issues (including the new Intelligence and Security Services Act, the possible reintroduction of the retention of telecommunications data, camera system @MIGO-BORAS, and medical confidentiality with health insurance companies). The Committee will likely present its ‘Concluding Observations’ within a matter of weeks. Privacy First awaits the outcome of these observations with confidence.

Update July 26, 2019: yesterday afternoon the Committee has published its Concluding Observations on the human rights situation in the Netherlands, which includes critical opinions on two privacy issues that were brought to the attention of the Committee by Privacy First: 

The Intelligence and Security Services Act

The Committee is concerned about the Intelligence and Security Act 2017, which provides intelligence and security services with broad surveillance and interception powers, including bulk data collection. It is particularly concerned that the Act does not seem to provide for a clear definition of bulk data collection for investigation related purpose; clear grounds for extending retention periods for information collected; and effective independent safeguards against bulk data hacking. It is also concerned by the limited practical possibilities for complaining, in the absence of a comprehensive notification regime to the Dutch Oversight Board for the Intelligence and Security Services (CTIVD) (art. 17).
The State party should review the Act with a view to bringing its definitions and the powers and limits on their exercise in line with the Covenant and strengthen the independence and effectiveness of CTIVD and the Committee overseeing intelligence efforts and competences that has been established by the Act.

The Market Healthcare Act

The Committee is concerned that the Act to amend the Market Regulation (Healthcare) Act allows health insurance company medical consultants access to individual records in the electronic patient registration without obtaining a prior, informed and specific consent of the insured and that such practice has been carried out by health insurance companies for many years (art. 17).
The State party should require insurance companies to refrain from consulting individual medical records without a consent of the insured and ensure that the Bill requires health insurance companies to obtain a prior and informed consent of the insured to consult their records in the electronic patient registration and provide for an opt-out option for patients that oppose access to their records.

During the session in Geneva the abolition of the referendum and the camera system @MIGO-BORAS were also critically looked at. However, Privacy First regrets that the Committee makes no mention of these and various other current issues in its Concluding Observations. Nevertheless, the report by the Committee shows that the issue of privacy is ever higher on the agenda of the United Nations. Privacy First welcomes this development and will continue in the coming years to encourage the Committee to go down this path. Moreover, Privacy First will ensure that the Netherlands will indeed implement the various recommendations by the Committee.

The entire Dutch Session before the Committee can be watched on UN Web TV (1 July and 2 July). See also the extensive UN reports, part 1 and part 2 (pdf).

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.

Holiday register

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.

European Court

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.

Mass surveillance

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.

For further information or questions with respect to the issues above, feel free to contact Privacy First at all times by phone (+31-20-8100279) or email: This email address is being protected from spambots. You need JavaScript enabled to view it..

Yours sincerely,

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.

The Dutch Ministry of Finance is about to oblige companies to export personal data on a large scale. The measure is hidden in a subordinate clause of a letter from the Minister of Finance, although it has major consequences. The measure obliges companies that trade in 'virtual assets' (such as bitcoins, real estate, but also purchases in computer games) to include personal data of customers in the transaction records and messages. The information from all parties involved needs to remain visible and available to everyone in the value chain.

Consumers, companies and citizens cannot object to this mandatory addition of their personal data. The topic is not receiving the proper amount of political attention because it is presented as a technical measure. In his letter to Dutch Parliament of 21 March 2019, the Minister fails to point out the large scope and impact. It is, however, suggested that a consultation round will take the market responses to the envisaged rules onboard.

Privacy First and VBNL (United Bitcoin Companies Netherlands) have meanwhile understood that the worldwide objections to the proposed measure are being ignored. That is why they are today sending an urgent letter to the Dutch Minister of Finance. They ask him to study the issue better, with all relevant Ministries and in particular: to better inform Parliament. In doing so, they point to the conflicts of law that may arise as the measure may well violate international agreements and treaties that protect privacy.

Where it is known that consumers are very reluctant to make their own data available to private and commercial institutions, the government must be similarly reluctant on their behalf. Privacy First finds it extremely unfortunate that the Ministry of Finance seems to intend to give this all-in permission for unbridled export of personal data without giving it proper attention and without applying due process.

There is no merit to the claim that the measure is required for counter-terrorism purposes. Experts at Europol (!) indicate that the international proposal is "overkill" and not necessary for investigative purposes. The rule adds nothing to the existing European framework against money laundering and terrorist financing and only increases the risk of unwanted data breaches.

Privacy First and VBNL hope that their letter will make Dutch Parliament aware that this is a proposal that goes far beyond the much-debated access-regime of the recent second European Payment Services Directive (PSD2). With PSD2, consumers can decide to share data themselves. With this proposal, they will become deprived of that fundamental right for all kinds of economic acts. Privacy First and VBNL are calling on parliamentarians to protect consumers and businesses against this unnecessary planned measure.

The letter can be downloaded here (pdf).

PSD2 opt-out register

Is it possible to have innovation in the field of payment data while preserving privacy? Under the new European banking law PSD2, payment data can be shared with non banking parties. The legislator has, however, failed to implement privacy by design. Therefore, the Privacy First Foundation has taken the initiative to launch a PSD2 opt-out register in the Netherlands. We are happy to report that the SIDN Fund is supporting us in this. With this opt-out register bank account numbers can be filtered. This can be useful in case bank account numbers are linked to sensitive personal data, such as a payment to a trade union, a healthcare insurer, a political party or an organization that reveals one’s sexual preference. It can also be useful when consumers wish to filter their contra accounts. The Dutch PSD2 opt-out register could become trendsetting at a European level.

Source: https://www.sidnfonds.nl/nieuws/de-eerste-pioniers-van-2019, 22 May 2019 (in Dutch).

Follow https://psd2meniet.nl for updates and become a member of our PSD2 Privacy Panel! (in Dutch)

For all its projects and affiliated activities, Privacy First is largely dependent on donations. The more financial support and donations we receive, the sooner Privacy First will be able to launch the PSD2 opt-out register.