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by a judge, let alone in interim injunction proceedings), on 11 March, 2015, the Dutch district court in The Hague repealed the entire Act at once.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!
Christmas column by Bas Filippini,
Chairman of the Privacy First Foundation
Principles of our democratic constitutional State are still very relevant
‘‘Your choice in a free society’’ is the slogan of the Privacy First Foundation. Privacy First has defined its principles on the basis of universal human rights and our Dutch Constitution and is reputed for professional and, if necessary, legal action in line with our free constitutional State. The mere fact that Privacy First exists, means that in recent years the aforementioned principles have come under increasing pressure. We base our (legal) actions and judgements on thorough fact-finding, to the extent possible in our working area.
‘The Netherlands as a secure global pioneer in the field of privacy’, that’s our motto. This country should also serve as an example of how to use technology whilst maintaining the principles of our open and free society. This can be achieved through legislative, executive and IT infrastructures, starting from privacy by design and making use of privacy enhanced technology.
Whereas the industrial revolution has environmental pollution as a negative side effect, the information revolution has the ‘pollution of privacy and freedom’ as an unwanted side effect.
Therefore, the question is how to preserve the basic principles of our democratic constitutional State and how to support new structures and services towards the future. As far as we’re concerned, these basic principles are neither negotiable nor exchangeable. Yet time and again we see the same incident-driven politics based on the misconceptions of the day strike at times when the constitutional State is at its most vulnerable and cannot defend itself against the emotional tide of the moment.
Paris as yet another excuse to pull through ‘new’ laws
Various politicians feed on the attacks in Paris and tumble over one another to express Orwellian macho talk, taking things further and further in legislative proposals or in emotional speeches characterized by belligerence and rhetoric. And it’s always so predictable: further restraining existing freedoms of all citizens instead of focusing further on the group of adolescents (on average, terrorist attackers are between 18 and 30 years old) that intelligence agencies already have in sight. Instead of having a discussion about how intelligence agencies can more effectively tackle the already defined group that needs to be monitored and take preventive measures in the communication with and education of this target group, the focus too easily shifts to familiar affairs whereby necessity, proportionality and subsidiarity are hard to find.
So in the meanwhile we’ve witnessed the prolonged state of emergency in France, the far reaching extension of powers of the police, the judiciary and intelligence services (also to the detriment of innocent citizens), extra controls in public space, the retention of passenger data, etc., etc. All this apparently for legitimate reasons in the heat of the moment, but it will be disastrous for our freedom both in the short as well as in the long run. In this respect the blurring definition of the term ‘terrorism’ is striking. Privacy First focuses on government powers in relation to the presumption of innocence that citizens have. We’re in favour of applying special powers in dealing with citizens who are under reasonable suspicion of criminal offences and violate the rights of others with their hate and violence. In fact, that’s exactly what the law says. Let’s first implement this properly, instead of introducing legislative proposals that throw out the baby with the bathwater.
The governments is committed to impossible 100 per cent security solutions
What often strikes me in conversations with civil servants is the idea that the government should provide 100 per cent solutions for citizens and applies a risk exclusion principle. This leads to a great deal of compartmentalization and paralyzation when it comes to possible government solutions in the area of security. Technology-based quick fixes are adhered to by default, without properly analyzing the cause of problems and looking at the implementation of existing legislation.
The government way of thinking is separate from citizens, who are not trusted in having legal capacity and are regarded as a necessary evil, as troublesome and as inconvenient in the performance of the government’s tasks. The idea that the government, serving its citizens, should offer as high a percentage as possible but certainly not a 100 per cent security (the final 10 per cent are very costly on the one hand and suffocating for society on the other) is not commonly shared. No civil servant and no politician is prepared to introduce policies to maintain an open society today (and 50 years from now) that entail any risk factors. However, in reality there will always be risks in an open society and it should be noted that a society is not a matter of course but something we should treat with great care.
Here in the Netherlands we’ve seen other forms of government before: from rule by royal decree to a bourgeoisie society and an actual war dictatorship. Every time we chose not to like these forms of society. What could possibly be a reason to be willing to go back to any of these forms and give up our freedoms instead of increasing them and enforcing them with technology? Especially in a society that has high levels of education and wherein citizens show to be perfectly able to take their own decisions on various issues. We hire the government and politics as our representatives, not the other way around. However, we’re now put up with a government that doesn’t trust us, is only prepared to deliver information on the basis of FOIA requests and requires us to hand over all information and communications about us and our deepest private lives as if we were prima facie suspects. That puts everything back to front and to me it embodies a one way trip to North Korea. You’ll be more than welcome there!
Political lobby of the industry
The industry’s persistence to overload the government and citizens with ICT solutions is unprecedented. Again and again here in the Netherlands and in Silicon Valley the same companies pop up that want to secure their Christmas bonus by marketing their products in exchange for our freedom. We’re talking about various electronic health records like the Child record and the Orwellian and centralized electronic patient record, the all-encompassing System Risk-Indication database, travel and residency records, road pricing, chips in number plates and cars, so-called automated guided vehicles (including illegal data collection by car manufacturers), number plate parking, automatic number plate recognition cameras, facial recognition in public space and counter-hacking by government agencies while voting computers are back on the agenda. Big Data, the Internet of things, the list goes on.
With huge budgets these companies promote these allegedly smart solutions, without caring about their dangers for our freedom. It’s alienating to see that the reversal of legal principles is creeping in and is being supported by various government and industry mantras. It’s as if a parasitic wasp erodes civil liberties: the outside looks intact but the inside is already empty and rotten.
From street terrorism to State terrorism
As indicated above, the information revolution leads to the restriction of freedom. It’s imperative to realize that after 4000 years of struggle, development and evolution we have come to our refined form of society and principles that are (relatively) universal for every free citizen. Just as most of us are born out of love, freedom and trust, to me these are also the best principles with which to build a society. We’re all too familiar with societies founded on hate, fear and government control and we have renounced them not so long ago as disastrous and exceptionally unpleasant. At the expense of many sacrifices and lives these principles have been enshrined in treaties, charters and constitutions and are therefore non-negotiable.
It’s high time to continue to act on the basis of these principles and make policy implementation and technology subordinate to this, taking into account the people’s needs and their own responsibility. In my eyes, a civil servant in the service of the people who places security above everything else, is nothing more than a State terrorist or a white collar terrorist who in the long term causes much more damage to our constitutional State and freedom than a so called street terrorist. The government and industry should have an immediate integrity discussion about this, after which clear codes can be introduced for privacy-sustainable governing and entrepreneurship.
Towards a secure global pioneer in the field of privacy
Privacy First would like to see government and industry take their own responsibility in protecting and promoting the personal freedom of citizens and in so doing use a 80/20 rule as far as security is concerned. By focusing on risk groups a lot of money and misery can be saved. Exceptions prove the rule, which in this case is a free and democratic constitutional State and not the other way around. Say yes to a free and secure Netherlands as a global pioneer in the field of privacy!