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
Partly on the initiative of Privacy First, a special Committee of the United Nations will this week in Geneva look into the imminent adoption of Taser weapons among the entire Dutch police force. This adoption possibly contravenes the UN Convention against Torture.
Right to physical integrity
For Privacy First, the right to privacy has always been a broad human rights concept. This includes the right to physical integrity. In recent years, this right has come under increasing pressure, think of preventive frisking on the streets, body scans at airports, DNA databases, the new Organ Donation Act in the Netherlands, discussions about compulsory vaccinations, etc. The right to physical integrity is laid down not only in the European Convention on Human Rights, but is also protected by Article 11 of the Dutch Constitution. At an international level, this right is part of the category of human rights which have the strongest protection. The absolute prohibition of torture and other cruel, inhuman or degrading treatment falls in the same category.
UN Convention against Torture
In international law, torture is in the small category of absolute prohibitions. Other examples within this category are the prohibition of genocide, international aggression (illegal warfare), slavery, racial discrimination, apartheid and piracy. Violation of these norms is always and under all circumstances prohibited. Anyone anywhere in the world who is committing or has committed torture or other cruel, inhuman or degrading treatment or punishment should therefore be prosecuted and extradited. Public officials, ministers, presidents and Heads of State are no exception to this rule. Since 1988, the Netherlands is party to the convention in which this is laid down: the UN Convention against Torture. Every contracting party is periodically reviewed by the treaty monitoring body in Geneva: the UN Committee against Torture. Opinions delivered by this Committee provide authoritative guidance on the application and interpretation of the convention. On Tuesday and Wednesday this week, it will be the Netherlands’ turn to be reviewed (the last time was in 2013): on Tuesday the Netherlands will be questioned by the Committee’s members, after which the Dutch government delegation will provide its answers on Wednesday. Subsequently, the Committee will issue a series a recommendations (‘Concluding Observations’) to the Netherlands.
Taser weapons on the UN agenda
In preparation of the Dutch session and on behalf of a broad coalition of civil society organizations, the Dutch section of the International Commission of Jurists for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM) has recently sent a so-called 'shadow report' about the Netherlands to the Committee in Geneva. On the initiative of Privacy First, the issue of Taser weapons was expressly put on the agenda, as was the case in 2013. The situation is such that the Dutch government aims to provide every Dutch police officer with his own Taser weapon, media reported only last week. Thus far, only special arrest teams are equipped with Taser weapons. The expectation is that the wider, more general deployment of Taser weapons will lead to structural excesses. In this respect, all scandals with Taser weapons, particularly those in the United States, speak for themselves. In Privacy First’s view, the use of Taser weapons can easily lead to violations of the international prohibition of torture or cruel or inhuman treatment and the associated right to physical integrity. Taser weapons lower the threshold for the use of violence and hardly leave behind any visible traces. By the same token, Taser weapons can cause serious physical and mental damage. This results in serious risks for the Dutch population and for certain vulnerable groups in particular. That’s why our joint shadow report to the Committee emphasizes these risks (see pages 15-16 of the report).
Previous criticism of the UN Committee
Both the Dutch coalition of civil society organizations as well as Amnesty International have requested the UN Committee to cross-examine the Dutch government on this issue and advise the Netherlands not to equip the entire police force with Taser weapons. This is what Privacy First and other parties had already pushed for during the previous session of the UN Committee in 2013. Back then, this led the Committee to issue the following urgent recommendations to the Netherlands:
“The Committee recommends to [the Netherlands], in accordance with articles 2 and 16 of [the Convention against Torture], to refrain from flat distribution and use of electrical discharge weapons by police officers. It also recommends adopting safeguards against misuse and providing proper training for the personnel to avoid excessive use of force. In addition, the Committee recommends that electrical discharge weapons should be used exclusively in extreme limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons.” (paragraph 27).
Privacy First is confident the Committee will again come up with critical recommendations.
Update 22 November 2018: yesterday and the day before the Dutch session took place before the UN Committee. Numerous topical issues were critically examined, including Taser weapons. Representatives of Curaçao, Sint Maarten and Aruba emphatically declared that no Taser weapons are used on their islands. This contrasted sharply with the statements made by the representative of the Dutch government (Secretary General Siebe Riedstra of the Ministry of Justice and Security), who barely addressed the issue and merely remarked that the Dutch government will take a decision on the adoption of Taser weapons in 2019. Below are all the relevant audio clips:
Questions by Abdelwahab El Hani on behalf of the UN Committee, 20 November 2018:
(simultaneous interpretation into English)
Answer by Siebe Riedstra on behalf of the Netherlands:
New questions by Abdelwahab El Hani on behalf of the UN Committee, 21 November 2018:
(simultaneous interpretation into English)
Answer by Siebe Riedstra on behalf of the Netherlands:
See also the UN press release about the Dutch session in Geneva, the full video recording (day 1 and day 2) and the verbatim report of proceedings (day 1 and day 2). The UN Committee is expected to present its Concluding Observations about the Netherlands within a few weeks’ time.
Update 7 December 2018: today the UN Committee has issued a number of Concluding Observations to the Dutch government, urging the Netherlands not to equip the entire police force with Taser weapons and to limit their adoption to cases that can be deemed proportionate and strictly necessary. The Committee emphatically cautions against using Taser weapons against vulnerable people. Moreover, the Committee expresses serious concerns about the way Taser weapons have been used by the Dutch police thus far.The entire report by the Committee can be found HERE (pdf). Below is the part concerning Taser weapons (paragraph 42-43):
Electrical discharge weapons (tasers) and pepper spray
42. The Committee notes with concern that despite its previous recommendations against the routine distribution and use of electrical discharge weapons (tasers) by police officers, the State party conducted a pilot testing from February 2017 to February 2018 without clear instructions on their restrictive use. It is particularly concerned at information that during this pilot period, police officers used tasers in situations where there was no real and immediate threat to life or risk of serious injury, including in cases where targeted individuals were already in police custody. It is further concerned about reports of the frequent use of the so-called “stun mode” which is intended to merely inflict pain, and the incidents in which tasers were used against minors as well as persons with mental disabilities in healthcare settings. In addition, the Committee is concerned about information that the use of pepper spray is not regulated fully in line with principles of necessity and proportionality and that the new draft Instructions on the Use of Force is expected to further lower the threshold for using it and to permit its use against vulnerable persons including pregnant women and children (arts. 2, 11 and 16).
43. Recalling the Committee’s previous recommendations (CAT/C/NLD/CO/5-6, para. 27), the State party should:
(a) Refrain from routine distribution and use of electrical discharge weapons by police officers in their day-to-day policing, with a view to establishing a high threshold for their use and avoiding excessive use of force;
(b) Ensure that electrical discharge weapons are used exclusively in limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons and by trained law enforcement officers only;
(c) Explicitly prohibit the use of electrical discharge weapons and pepper spray against vulnerable persons, including minors and pregnant women, and in healthcare settings, including mental health institutions, and especially prohibit the use of electrical discharge weapons in the custodial settings;
(d) Ensure that the instructions on the use of electrical discharge weapons and pepper spray emphasize the absolute prohibition of torture and the need to respect the principles of necessity and proportionality, fully in accordance with the Convention and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;
(e) Adopt safeguards against misuse of electrical discharge weapons and pepper spray and provide proper training and awareness programmes for the law enforcement personnel;
(f) Monitor and regularly review the use of electrical discharge weapons and pepper spray, and provide the Committee with this information.
Privacy First appreciates the critical opinion and the principled position of the Committee. Not least because it creates a strong precedent for other countries worldwide. Privacy First will ensure that the Dutch government will comply with the Committee’s observations.
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.
Below, in alphabetical order, are Privacy First’s main objections against the new Dutch Intelligence and Security Services Act (Wiv2017, or ‘Tapping law’):
A. Authority to hack
Under the new law, the Dutch intelligence services will be able to hack a target through innocent third parties. By hacking a third party (for example an aunt, a sister, a friend, a husband, a grandfather, a colleague, a neighbour, a public authority, a company, etc.), information can be obtained about the target. In other words, any devices of innocent citizens may be hacked by the intelligence services. Citizens will never be notified about this, as there is no duty to inform.
C. Chilling effect
The new law may result in people behaving differently (either consciously or not) than they would do in a free environment. This can have a negative effect on the exercise of their fundamental rights other than the right to privacy, for instance on the right to freedom of expression and the right to freedom of association, assembly and demonstration.
Under both the current as well as the new law, Dutch secret agents are authorized to commit criminal offences. However, up until now, the exact scope of this power has been unknown. Under the current law, this power could be further regulated through a (never introduced) General Administrative Order. A number of years ago, the Dessens Commission recommended introducing such a General Administrative Order after all. In the new Tapping law however, the foundation for this General Administrative Order has been scrapped, leaving behind a legal vacuum.
The new law enables automatic access to databases in both the entire private and public sector. This allows intelligence services direct access to various sensitive databases of companies, public authorities and other organizations, either through informants and agents (infiltrators), or through secret agreements.
The power to conduct ‘research-oriented interception’, popularly known as the ‘trawl net method’ or the ‘the dragnet-surveillance power’, allows intelligence and security agencies (secret services) to tap the internet traffic of large groups of people simultaneously. They may tap a particular municipality, neighbourhood, local community or street, in case one of their targets happens to live there. This entails monitoring the communications of innocent citizens by means of a digital dragnet. Privacy First believes that the data of innocent citizens do not belong in the hands of intelligence services. Apart from that, the collection of huge amounts of data makes the intelligence services less effective.
Under the new law, encrypted data in the possession of companies, public authorities and individuals (for example communications data) must be decrypted on the request of secret services. Refusing to comply with a decryption order will be punished with a maximum of two years’ imprisonment.
Under the Tapping law, the intelligence and security services will have their own DNA database. They may collect DNA of targets and non-targets (innocent citizens). In order to collect DNA, they are allowed to grant themselves access to confined places, such as offices or residences. Dutch magazine Groene Amsterdammer has recently written an extensive article about the DNA Collection Service.
E. European Convention on Human Rights (ECHR)
The right to privacy is a human right: this right is protected by article 8 of the ECHR. Privacy First is of the opinion that the new Tapping law violates the right to privacy. We are ready to start interim injunction proceedings (lawsuit) against the Dutch government in case the Tapping law comes into force. This would enable a judge to scrutinize the new Act and possibly render it (partly) inoperative on account of violation of article 8 ECHR.
Exchange of data
The data of innocent citizens and journalists that are collected through the use of internet dragnet surveillance can be shared with foreign intelligence agencies before first being evaluated by the Dutch agencies.
F. Fake news from the Dutch government
According to the Dutch Minister of the Interior Kajsa Ollongren, it’s not necessary that the government puts neutral information about the Tapping law referendum on its website rijksoverheid.nl. This means that the Dutch government does not provide objective information to voters.
The law gives too much power to intelligence and security services and too little privacy guarantees to citizens. After the Tapping law referendum, the law will have to go back to the legal drawing board, where proper privacy guarantees should be added and the exercise of powers be reviewed.
H. Human rights
Privacy is a human right. The right to protection of one’s private life applies to everyone and is being guaranteed by numerous international and European treaties. The Tapping law will massively violate this right, considering the fact that it allows for the collection, storage and international exchange of data of large groups of innocent citizens.
Hyping the terror threat
Proponents of the Tapping law have often put forward the argument that it will prevent terror attacks, as was shown by Dutch television show Zondag met Lubach. However, other countries have already shown that working in a focused, targeted way is much more effective. Opponents of the Tapping law agree that the current law needs to be updated, but they demand that the law be modified and improved in crucial aspects.
I. I’ve got nothing to hide
Everyone is entitled to having a private life. That’s why the data of innocent citizens do not belong to intelligence and security agencies. It’s important for these data, which include medical information, personal conversations, private emails, work-related emails, news stories, hobbies, interests and internet search results, to be protected properly. You may have ‘nothing’ to hide, but other citizens, like medical professionals, attorneys, activists, whistle-blowers and journalists certainly do.
Interception of cable-bound data
It is falsely being argued that the intelligence and security services are currently allowed to intercept data over the ether (non cable-bound) only and not any cable-bound data. Under current legislation, they may intercept cable-bound data when the target concerns, for example, a particular individual. Under the new law, secret services will be authorized to intercept cable-bound data on a large scale and without specific targets (the dragnet method).
Internet of Things
An ever increasing number of devices are connected to the internet. All these devices can be tapped and hacked under the new Tapping law. Think of a car, a camera, microphone, printer and perhaps even a pacemaker. After all, the Tapping law doesn’t exclude this possibility.
The communications of journalists may be intercepted under the new Tapping law by means of dragnet surveillance, among other ways. Secret services may acquire knowledge about this confidential information. This constitutes a threat to the freedom of the press and the journalistic right to non-disclosure of sources. Only retrospectively will secret services delete information that turns out not to be useful for any investigation.
In most cases, a judicial verification of the exercise of powers is lacking. As explained under ‘Review Board for the Use of Powers’(TIB), the new Review Board lacks the investigatory powers for effective and independent monitoring.
In his tv programme Zondag met Lubach, comedian and television presenter Arjen Lubach has looked into the Tapping law three times, explaining why it’s good to be critical about it. You can watch the videos (in Dutch) here: Tapping law 1, Tapping law 2 and Tapping law 3.
M. Medical confidentiality
Under the new law, the medical confidentiality of patients and the medical secrecy of doctors cannot be guaranteed: secret services can make a request to anyone, including doctors and hospitals, to hand over relevant data and to grant access to their data system (Electronic Health Record). They can also hack into such systems. This can lead to the evasion of health care among patients, which could endanger national health.
N. Notification obligation
Under the new law, the notification obligation is insufficient. Five years after exercising a certain power, the person concerned should, in principle, be notified about this. This, however, applies to only a few of the newly introduced powers. Privacy First thinks the notification obligation should apply to the exercise of all powers.
O. Other countries
Under the new Tapping law, data that have been collected may be shared with other countries without being evaluated first. This means that Dutch intelligence services can share unseen and unselected data (of innocent citizens) with foreign secret services. Once the data have been shared, Dutch intelligence services won’t be able to monitor the use of these data anymore.
P. Presumption of innocence
With the introduction of the new law, the presumption of innocence gets inverted. The dragnet-surveillance makes every single citizen a potential suspect, without any concrete ground to monitor someone in particular. Moreover, large-scale data collection increases the chance of false positives.
Q. Quest for data
The Dutch government has developed an enormous thirst for data. Whereas neighbouring countries go back to a target-centric approach, the Netherlands embraces Big Data. This leads to an ever growing haystack in which finding the needle will become increasingly difficult. More data is no equivalent to more security.
R. Review Board for the Use of Powers (TIB)
Independent supervision in all phases of the exercise of powers by secret services (before, during and afterwards) is insufficiently guaranteed. Since intelligence services operate secretly, citizens against whom such powers are exercised cannot object to this themselves. That’s why the exercise of powers is to be reviewed independently. The new Review Board for the Use of Powers (Toetsingscommissie Inzet Bevoegdheden) reviews beforehand whether the minister has rightfully given approval for the exercise of a relatively far-reaching (‘special’) power under the new law. This review is substantiated by less guarantees than the review by a judge. Furthermore, the Review Board doesn’t have any investigative powers of its own and is completely dependent on the information it’s provided with by others. Various authorities, such as the Dutch Data Protection Authority, have warned that the Review Board shouldn’t become a 'rubber stamping machine'.
Review Committee on the Intelligence and Security Services (CTIVD)
The judgments of the Review Committee on the Intelligence and Security Services, which retrospectively reviews whether or not powers have been applied lawfully, are not binding. The Minister of the Interior may not take the findings and recommendations into account and continue to unlawfully use powers.
Privacy and security are unduly placed on opposite sides of the balance. In a free and democratic society, privacy and security go hand in hand. It’s possible to draft an Intelligence and Security Services Act that has good privacy safeguards under which information of innocent citizens doesn't end up in the hands of intelligence agencies.
Unevaluated data that have been collected through ‘dragnet surveillance, may be stored for three years. These data may also be shared with other countries, even without first being evaluated. Data that the intelligence and security agencies deem relevant may be kept for as long as they are regarded as such.
Z. Zero days
The intelligence and security services have the power to make use of unknown software vulnerabilities, so called zero-days. Such vulnerabilities are known to them, but not to the creator or manufacturer of the software. They don’t have to notify the manufacturer about it. This allows malicious parties to exploit vulnerabilities, even over longer time periods. It also creates a black market, where such vulnerabilities and data breaches are traded.
This list is not exhaustive and can be supplemented at all times.
Since 2013, the Dutch Association of General Practitioners has, in an essential civil case, been litigating against the private successor of the Dutch Electronic Health Record (Elektronisch Patiëntendossier, EPD): the National Switch Point (Landelijk Schakelpunt, LSP). At the end of last week, the Dutch Supreme Court decided that, for the time being, the LSP is not in violation of current privacy law. However, the Supreme Court has laid down in its judgment that the LSP will soon have to comply with the legislative requirement of privacy-by-design. This constitutes an important precedent and raises the bar with a view to the future.
Private relaunch of EPD: National Switch Point
In April 2011, the Dutch Senate unanimously rejected the EPD, primarily on account of privacy objections. However, almost directly afterwards, various market participants (among which health insurance companies) made sure there was a relaunch of the same EPD in private form: the LSP, intended for the large-scale, central exchange of medical data. Since then, the LSP has been introduced nationally and many practitioners have aligned themselves with it, oftentimes under pressure of health insurers. Millions of people in the Netherlands have given their ‘consent’ to the exchange of their medical records via the LSP. However, this ‘consent’ is so broad and general, it’s virtually impossible to deem it lawful. This was one of the main objections the court case of the Association of General Practitioners against the LSP revolved around. Other objections against the LSP are related to the fact that its architecture is inherently insecure and in breach of privacy. Through the LSP, every connected medical record is accessible for thousands of health care providers. This is in violation of the right to privacy of patients and the medical confidentiality of treating physicians. What’s more, there is no privacy-by-design, for example through end-to-end encryption. The LSP is basically as leaky as a sieve, which means that it’s ideal for function creep and possible abuse by malicious actors.
Specific Consent Campaign
Over the last couple of years, Privacy First has repeatedly raised the alarm about this in the media. We have brought the issue to the attention even of the United Nations Human Rights Council. In April 2014, a large scale Internet campaign was launched on the initiative of Privacy First and the Dutch Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten) in order to retain and enhance the right to medical confidentiality: www.SpecifiekeToestemming.nl. Ever since, this campaign is being supported by numerous civil organizations, healthcare providers and scholars. The essence of the campaign is that specific consent should (again) become the leading principle when it comes to the exchange of medical data. In case of specific consent, prior to sharing medical data, clients have to be able to decide whether or not, and if so, which data to share with which healthcare providers and for which purposes. This minimizes risks and enables patients to control the exchange of their medical data. This is in contrast to the generic consent that applies to the LSP. In the case of generic consent, it is unforeseeable who can access, use and exchange someone’s medical data. In this respect, generic consent is in contravention of two classic privacy principles: the purpose limitation principle and the right to free, prior and fully informed consent for the processing of personal data.
Privacy by design
Courtesy also of the pressure exerted by our campaign SpecifiekeToestemming.nl, the Dutch legislative proposal Clients’ Rights in relation to the processing of data in healthcare (legislative proposal 33509), was strenghtened by the House of Representatives in 2014 and was adopted by the Senate in 2016 as a result of two crucial motions: 1) the motion Bredenoord (D66) about the further elaboration of data-protection-by-design as the starting point for the electronic processing of medical data and 2) the motion Teunissen (Party for the Animals) related to keeping medical records accessible on a decentral (instead of a central) level. Under the new law, specific (‘specified’) consent is obligatory. This should now be implemented in all existing and future systems for the exchange of medical data, including the LSP. Moreover, privacy-by-design will become an inexorable legal duty under the new European General Protection Data Regulation (GDPR), that is to say, privacy and data protection should be incorporated in all relevant hardware and software from the very first design. In this context, there have been several developments on the Dutch market in recent years, all of which indicate that both specific consent as well as privacy-by-design are indeed becoming standards in new systems. A prime example of this in a medical context is Whitebox Systems, which won a Dutch National Privacy Innovation Award in 2015 already.
Court case of Association of General Practitioners
Since March 2013, the Dutch Association of General Practitioners (Vereniging Praktijkhoudende Huisartsen, VPH) has been litigating in a large-scale civil case against the private administrator of the LSP: the Association of Healthcare Providers for Healthcare Communication (Vereniging van zorgaanbieders voor zorgcommunicatie, VZVZ). Following unsatisfactory rulings by the district court of Utrecht and the Arnhem Court of Appeal, VPH appealed before the Dutch Supreme Court at the end of 2016. Since then, this case has, on the recommendation of Privacy First, received pro bono support from law firm Houthoff Buruma. As amicus curiae, Privacy First and the Platform for the Protection of Civil Rights filed a letter (PDF) with the Supreme Court in support of the general practitioners and in line with our joint campaign SpecifiekeToestemming.nl. In her conclusion, the Advocate general of the Supreme Court referred extensively to the amicus curiae letter. On 1 December 2016, the Supreme Court finally came up with its ruling. Regrettably, the Supreme Court by and large agreed with the line of reasoning of the Arnhem Court of Appeal. Privacy First cannot help thinking that the LSP (even before the Supreme Court) is apparently too big too fail: by now this faulty system has grown to the extend that no one dares to declare it unlawful. There is, however, an important positive note, which can be found in the final consideration of the Supreme Court:
‘‘[The Court has] acknowledged that the healthcare infrastructure can be designed in such a way that a clearer distinction can be made between (sorts of) data and (categories of) healthcare providers and, particularly, in such a way that the exchange of data on the basis of consent can beforehand be limited to cases of urgency. The Court takes the view that such infrastructure would be better in line with the principles of the Privacy Directive and the Personal Data Protection Act, but that it could not have been demanded from VZVZ at the time of the contested ruling. According to the Court, VZVZ can be expected, however, to alter its system offering greater freedom of choice, as soon as this is technically possible and feasible.
These considerations are not incomprehensible. It is worthwhile noting that, considering (...) the regulatory changes and VZVZ’s ambitions in relation to the system (...), privacy by design and privacy by default as explicit points of departure (art. 25, paragraphs 1 and 2 General Data Protection Regulation), is what the Court can reasonably expect from VZVZ.’' (5.4.4)
Just like the Arnhem Court of Appeal, the Supreme Court clearly homes in on the implementation of specific consent and privacy-by-design when it comes to the LSP. The Supreme Court thereby creates a positive precedent which will set the scene for the future, also in a broader sense. Privacy First will continue to actively follow the developments in this case and, if necessary, will not hesitate to bring certain aspects to the attention of the courts once more.
HERE you find the amicus curiae letter written by Privacy First and the Dutch Platform for the Protection of Civil Rights (pdf in Dutch).
Comments from the Dutch Association of General Practitioners: http://www.vphuisartsen.nl/nieuws/cassatieberoep-vphuisartsen-verloren-toch-winst/
Comments from SpecifiekeToestemming.nl: http://specifieketoestemming.nl/werk-aan-de-winkel-na-teleurstellend-vonnis-over-lsp/.
The Dutch government and Parliament aim to quickly introduce the privacy-violating Tapping law. A coalition of privacy advocates will start interim injunction proceedings to prevent this from happening.
Implementation of unaltered Tapping law imminent
In recent months, there has been a thorough public debate in the Netherlands about the new Dutch Intelligence and Security Services Act, the so-called ‘Tapping law’. In a referendum that was held on 21 March 2018, a majority of the Dutch citizenry voted AGAINST this act. In response to this, the Dutch government has promised only a few minor, superficial policy changes as well as a few non-fundamental legislative amendments. Both the Dutch government and the House of Representatives have with full intent pushed for a prompt entry into force of the Tapping law in its unaltered form, as per 1 May to be exact. The envisaged legislative amendments will be presented by the government only after the summer. Regrettably, a motion to postpone the implementation of the Tapping law until after these legislative amendments have been discussed, was yesterday repealed by the House of Representatives. With that, it seems Parliament has had its say and it is now again up to society to make a move.
Interim injunction proceedings
It is Privacy First’s established policy to try to prevent massive privacy violations. Unmistakeably, the implementation of the current Tapping law is a massive privacy breach, because as a result of it, there will be large-scale tapping into the Internet traffic of innocent citizens and, moreover, the data of innocent citizens will be exchanged with foreign secret services without first being evaluated. This is a blatant violation of the right to privacy. Therefore, we cannot wait for any possible legislative amendments that serve to ‘rectify retrospectively’. After all, by that time the violations will have already occurred. Today, a coalition of Privacy First and various other civil organizations and companies urge the government to postpone the introduction of the Tapping law (or at least those parts of it that constitute the gravest privacy violations) until all legislative amendments have been discussed in Parliament. In case the government refuses this request, our coalition will not hesitate to start interim injunction proceedings in order to enforce the postponement of the Tapping law before court.
Alongside Privacy First, the coalition that has been created for these proceedings is comprised of the Netherlands Committee of Jurists for Human Rights (NJCM), Bits of Freedom, the Dutch Association of Criminal Defence Lawyers (NVSA), the Dutch Platform for the Protection of Civil Rights, Free Press Unlimited, BIT, Voys, Speakup, Greenpeace International, Waag Society and Mijndomein Hosting. The case is taken care of by Boekx Attorneys and is coordinated by the Public Interest Litigation Project (PILP) of the Netherlands Committee of Jurists for Human Rights. Apart from said interim injunction proceedings, since March 2017 Privacy First and other organizations are preparing a larger scale lawsuit in order for multiple parts of the Tapping law to be declared unlawful as it contravenes international and European privacy law.
Today, on behalf of the coalition, our attorneys will send a letter to the Dutch government (the ministers of the Interior and Defence) requesting the postponement of the implementation of the Tapping law. The government will have the opportunity to respond to this request until Friday, 20 April.
Update 20 April 2018: the government has rejected the appeal of the coalition. The coalition will now continue preparing interim injunction proceedings.
Update 17 May 2018: today the coalition summons has been sent to the Dutch state attorney; click HERE for the full version (pdf in Dutch). The summary proceedings will take place at the District Court of The Hague on Thursday 7 June 2018, 10.00 am - 12.00 pm CET.
Update 7 June 2018: this morning the hearing took place before the District Court of The Hague; click HERE for the pleading of our attorneys (pdf in Dutch). The court is expected to deliver a ruling on Tuesday, 26 June 2018.
Update 26 June 2018: to the great disappointment of Privacy First, today the District Court of The Hague has unfortunately rejected the case. Find the complete ruling (in Dutch) HERE. From a legal point of view, the bar was set high in these interim injunction proceedings: in order to be able to win our case, the judge had to declare the Tapping law ‘unequivocally ineffective’ on account of blatant (unequivocal) violation of international or European privacy law. However, the court ruling reads like a foregone conclusion in favor of the State, not least because various objections of our coalition have remained unidentified. That being said, it needs to be stressed (as the court itself does too), that this ruling constitutes only a preliminary opinion and that a thorough (‘full’) review was lacking in this case.
The coalition of organizations that has initiated these proceedings regrets the judgment. In view also of the result of the referendum, the coalition is of the opinion that the government should have waited to introduce the contested parts of the Tapping law until the parliamentary legislative process in response to the referendum is finished. Introducing the Tapping law unchanged on 1 May 2018 before proposing amendments at a later stage (after the summer) is and remains incorrect.
The coalition will soon discuss possible follow-up legal action.
The Dutch citizenry has rejected the new Dutch Intelligence and Security Services Act. This act will now have the be amended. If not, legal action will be pursued.
Historic red line
Wednesday 21 March 2018 is a historic day: for the first time ever, the populace of a nation has spoken out against a law on intelligence services in a referendum. In this referendum, the Dutch had the chance to cast their ballots on the new Dutch Intelligence and Security Services Act, better known as the ‘Tapping law’. By now, it is known that a clear majority is AGAINST the law. Privacy First considers this as a historic victory and hopes that, as a result, similar developments will unfold in other countries: developments that contravene mass surveillance and the creation of controlled societies, and that lead to better legislation with true respect for the liberty of innocent citizens.
Objections against the Tapping law
The main objections of Privacy First against the Tapping law relate to the fact that it authorizes not only large-scale tapping into the Internet traffic and communications of innocent citizens, but also allows for the storage of these data for many years and the unsupervised exchange of these data with foreign secret services. These and other concerns of Privacy First have been listed in alphabetical order. The liberty-restricting Tapping law should not be viewed in isolation, but is part of a wider negative trend, as can be read in a recent column (in Dutch) by Privacy First chairman Bas Filippini.
Right from the very start, Privacy First has supported the organization of the Dutch referendum against the Tapping law. Alongside Privacy First, there are numerous other civil organizations that have been very active over the past few months to inform the citizenry about the Act. Most of the work, however, has been done by the referendum instigators: the students of the University of Amsterdam who, at the end 2017, collected enough signatures to make this referendum possible. For this unique achievement, Privacy First gave them a Dutch Privacy Award at the start of this year. Privacy First has recently called on all political parties at municipal level to take a stand against the Tapping law. Furthermore, through public debates, advertisements and social media and through interviews on the radio, on television and in newspapers, we have been as active as possible to create a critical mass. Moreover, Privacy First organized a public debate about the Tapping law in Amsterdam. It featured various renowned speakers, among them our attorney Otto Volgenant and the Dutch National Coordinator for Counter Terrorism and Security Dick Schoof. This debate (in Dutch) has been broadcasted on NPO Politiek several times and can also be viewed on our website and on YouTube. Even according to advocates of the Tapping law, this referendum was characterized by a substantive discussion among critical and well-informed members of the public. It is also in this regard that the referendum can be called a great success, a bright day for democracy and something that has increased general awareness about privacy in the Netherlands. After today, abolishing the referendum, which is what the Dutch government intends to do, should really be out of the question.
The law should be improved. Otherwise there will be legal action.
The consequences of the Dutch referendum about the Tapping law are clear: the law should be modified and improved immediately. If not, Privacy First and various other plaintiffs (organizations) will start a large-scale lawsuit with the express purpose of having various parts of the Act declared unlawful and rendered inoperative by a judge. In 2015, Privacy First and coalition partners succeeded in suspending the Dutch Data Retention Act in the same way. In recent years, Privacy First has on several occasions warned the Dutch government as well as both houses of Dutch Parliament that a similar lawsuit against the Tapping law would be imminent. The result of the current referendum has bolstered our position enormously. By now, the summons against the government has been prepared and our attorneys are ready to litigate. The choice is up to the government: change course or back down!
"Twelve organizations teamed up to file a lawsuit to stop the implementation of a new data mining law in the Netherlands. The new law was adopted by the Dutch Senate on Tuesday and gives the intelligence services more capabilities to spy on internet traffic on a large scale.
"We trust that the Dutch judges will pull the brake and say: this law goes too far", human rights lawyer Jelle Klaas, who is representing the coalition of organizations in their lawsuit, said to RTL Nieuws. The coalition includes the Public Interest Litigation Project, civil rights organization Privacy First, the Dutch Association of Journalists, the Dutch Association of Criminal Law Attorneys and the Platform for the Protection of Civil Rights.
According to the organizations, this law is a serious violation of Dutch citizens' privacy. The case will first be presented to a Dutch court, who will test it against the European Convention of Human Rights. If the Dutch court rules against the organizations, they will take it to the European Court.
Klaas is currently preparing the case. He expects that the lawsuit will only actually start after the new law is implemented on January 1st, 2018, but he hopes it happens earlier."
Source: http://nltimes.nl/2017/07/12/lawsuit-started-new-dutch-data-mining-law, 12 July 2017.
Tomorrow morning the Netherlands will be examined in Geneva by the highest human rights body in the world: the United Nations Human Rights Council. Since 2008, the Human Rights Council reviews the human rights situation in each UN Member State once every five years. This procedure is called the Universal Periodic Review (UPR).
Privacy First shadow report
During the previous two UPR sessions in 2008 and 2012, the Netherlands endured a fair amount of criticism. At the moment, the perspectives with regard to privacy in the Netherlands are worse than they’ve ever been before. This is reason for Privacy First to actively bring a number of issues to the attention of the UN. Privacy First did so in September 2016 (a week prior to the UN deadline), through a so-called shadow report: a report in which civil society organizations express their concerns about certain issues. (It’s worth pointing out that the Human Rights Council imposes rigorous requirements on these reports, a strict word limit being one of them.) UN diplomats rely on these reports in order to properly carry out their job. Otherwise, they would depend on one-sided State-written reports that mostly provide a far too optimistic view. So Privacy First submitted its own report about the Netherlands (pdf), which includes the following recommendations:
Better opportunities in the Netherlands for civil society organizations to collectively institute legal proceedings.
Introduction of constitutional review of laws by the Dutch judiciary.
Better legislation pertaining to profiling and datamining.
No introduction of automatic number plate recognition (ANPR) as is currently being envisaged.
Suspension of the unregulated border control system @MIGO-BORAS.
No reintroduction of large scale data retention (general Data Retention Act).
No mass surveillance under the new Intelligence and Security Services Act and closer judicial supervision over secret services.
Withdrawal of the Computer Criminality Act III , which will allow the Dutch police to hack into any ICT device.
A voluntary and regionally organized (instead of a national) Electronic Health Record system with privacy by design.
Introduction of an anonymous public transport chip card that is truly anonymous.
Privacy First did not sent its report only to the Human Rights Council but also forwarded it to all the foreign embassies in The Hague. Consequently, Privacy First had extensive (confidential) meetings in recent months with the embassies of Argentina, Australia, Bulgaria, Chili, Germany, Greece and Tanzania. The positions of our interlocutors varied from senior diplomats to ambassadors. Furthermore, Privacy First received positive reactions to its report from the embassies of Mexico, Sweden and the United Kingdom. Moreover, several passages from our report were integrated in the UN summary of the overall human rights situation in the Netherlands; click HERE ('Summary of stakeholders' information', par. 47-50).
Our efforts will hopefully prove to have been effective tomorrow. However, this cannot be guaranteed as it concerns an inter-State, diplomatic process and many issues in our report (and in recent talks) are sensitive subjects in countless other UN Member States as well.
UN Human Rights Committee
In December 2016, Privacy First submitted a similar report to the UN Human Rights Committee in Geneva. This Committee periodically reviews the compliance of the Netherlands with the International Covenant on Civil and Political Rights (ICCPR). Partly as a result of this report, last week the Committee put the Intelligence and Security Services Act, camera system @MIGO-BORAS and the Data Retention Act among other things, on the agenda for the upcoming Dutch session in 2018 (see par. 11, 27).
We hope that our input will be used by both the UN Human Rights Council as well as the UN Human Rights Committee and that it will lead to constructive criticism and internationally exchangeable best practices.
The Dutch UPR session will take place tomorrow between 9am and 12.30pm and can be followed live online.
Update 10 May 2017: during the UPR session in Geneva today, the Dutch government delegation (led by Dutch Minister of Home Affairs Ronald Plasterk) received critical recommendations on human rights and privacy in relation to counter-terrorism by Canada, Germany, Hungary, Mexico and Russia. The entire UPR session can be viewed HERE. Publication of all recommendations by the UN Human Rights Council follows May 12th.
Update 12 May 2017: Today all recommendations to the Netherlands have been published by the UN Human Rights Council, click HERE (pdf). Useful recommendations to the Netherlands regarding the right to privacy were made by Germany, Canada, Spain, Hungary, Mexico and Russia, see paras. 5.29, 5.30, 5.113, 5.121, 5.128 & 5.129. You can find these recommendations below. Further comments by Privacy First will follow.
Extend the National Action Plan on Human Rights to cover all relevant human rights issues, including counter-terrorism, government surveillance, migration and human rights education (Germany);
Extend the National Action Plan on Human Rights, published in 2013 to cover all relevant human rights issues, including respect for human rights while countering terrorism, and ensure independent monitoring and evaluation of the Action Plan (Hungary);
Review any adopted or proposed counter-terrorism legislation, policies, or programs to provide adequate safeguards against human rights violations and minimize any possible stigmatizing effect such measures might have on certain segments of the population (Canada);
Take necessary measures to ensure that the collection and maintenance of data for criminal [investigation] purposes does not entail massive surveillance of innocent persons (Spain);
Adopt and implement specific legislation on collection, use and accumulation of meta-data and individual profiles, including in security and anti-terrorist activities, guaranteeing the right to privacy, transparency, accountability, and the right to decide on the use, correction and deletion of personal data (Mexico);
Ensure the protection of private life and prevent cases of unwarranted access of special agencies in personal information of citizens in the Internet that have no connection with any illegal actions (Russian Federation). [sic]
Update 26 May 2017: a more comprehensive UN report of the UPR session has now been published (including the 'interactive dialogue' between UN Member States and the Netherlands); click HERE (pdf). In September this year, the Dutch government will announce which recommendations it will accept and implement.