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.