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
Privacy First has had a turbulent year. At the start of 2018, we organized the Dutch Privacy Awards and they were a great success. Soon this event will take place again. The greatest success of the year, however, was the referendum against the new Dutch Intelligence and Security Services Act (better known as the Tapping Law), which was won by the initiators and their many supporters. Subsequently however, the Dutch government decided to ruthlessly abolish the referendum and Privacy First and others unfortunately were not in a position to prevent the Tapping Law from entering into force almost unaltered. Unless the Dutch government and the House of Representatives decide to thoroughly overhaul the Act, a large scale new lawsuit to challenge it will be on the cards.
In terms of organization, the year has been marked mostly by positive developments. Since the summer, we have a new board of directors, a new advisory board and a new and relatively cheap (small) office on an excellent location. We have switched to privacy-friendly telecom provider Voys. Increasingly, Privacy First is approached by public authorities and companies to cooperate on privacy projects, for example with regard to the infamous European payments directive PSD2, which will soon enter into force in the Netherlands. In addition, Privacy First almost continuously pursues political lobbying and quiet diplomacy. Earlier this year, we’ve lobbied successfully with the Dutch State Commission on the Parliamentary System for the introduction of a binding referendum and a Constitutional Court. Moreover, we’ve made our critical voice heard with regard to the possible introduction of Passenger Name Records (PNR) in aviation and Taser weapons among the Dutch police force. After all, privacy is a broad term and is about much more than data protection only.
However, history has taught us that sustainable privacy protection usually requires legal action at a national or European level. That’s why Privacy First also pursues litigation. Those who’ve been acquainted with us for some time, know that when Privacy First starts legal proceedings, something is really going on - something, to be precise, which isn’t for the better. As soon as large scale privacy violations are imminent, it’s time for Privacy First to step in. This is one such moment. Your support of our operations is indispensable.
Case against ANPR Act
In recent years, Privacy First has regularly warned against the introduction of a new draconian Dutch law which allows for the continuous storage of data relating to travel movements of millions of motorists for four weeks in a central police database, regardless of whether or not these motorists are suspected of any wrongdoing. This is the Automatic Number Plate Recognition Act (ANPR). At the end of 2017, the Dutch Senate adopted this Act, after which Privacy First announced it would initiate legal proceedings. Subsequently, Privacy First had a meeting with the Dutch State Attorney, which was followed by a prolonged silence. Today however, the Dutch government announced it will introduce the ANPR Act as per 1 January 2019. Therefore, Privacy First is currently preparing interim injunction proceedings in order to render this Act inoperative on account of violation of the right to privacy. If necessary, these proceedings will be followed by proceedings which are broader in scope and will deal with the merits of the case. Indeed, this Act is a massive breach of privacy for which there is simply no place in a free and democratic constitutional State. Through Pro Bono Connect, Privacy First has hired law firm CMS to carry out proceedings on our behalf. Ideally, this would happen in coalition with other relevant organizations.
Urgent call for donations
Due to unexpected fundraising setbacks, at present Privacy First urgently needs financial support, including your support as a (potential) donor. The more support we get, the more thorough and therefore the more effective we will be able to conduct these legal proceedings and the more likely it will be we will come out victorious. Would you like to support Privacy First? Donating is very easy on the dedicated page on our website. Otherwise, please donate directly to account number NL95ABNA0495527521 (BIC: ABNANL2A) in the name of Stichting Privacy First in Amsterdam, the Netherlands, stating ‘donation’. Privacy First is recognized by the Dutch Tax and Customs Administration as an Institution for General Benefit (ANBI). Therefore your donations are tax-deductible.
In recent years, Privacy First has had a lot of positive influence thanks to your support. We hope to be able to count on you once again!
Privacy First wishes you happy holidays and a privacy-friendly 2019!
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.
"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.
Mass storage of fingerprints violates the right to privacy
Following the Court of Appeal of The Hague, today the Dutch Council of State (Raad van State) judged that municipal (‘decentral’) storage of fingerprints under the Dutch Passport Act is unlawful on account of violation of the right to privacy. The Council of State reached this conclusion in seven administrative law cases of Dutch individual citizens (supported by civil organization Vrijbit). At the start of 2014, the Court of Appeal of The Hague handed down a similar ruling in the civil Passport case by the Privacy First Foundation and 19 (other) citizens against the Dutch government. Subsequently however, our Passport trial was declared inadmissible by the Dutch Supreme Court and was redirected to the administrative judge: the Dutch Council of State. Privacy First then submitted its entire case file to the Council of State in order to reinforce the individual passport cases pending before this body. The Council of State (the supreme administrative court of the Netherlands) now rules similar to the way the Court of Appeal of The Hague has done before. Notwithstanding the later inadmissibility before the Supreme Court, the ban on the storage of everyone’s fingerprints in databases thus stands firm once again.
Faulty judgement and procedure
As was the case with the previous judgement by the Court of Appeal of The Hague, Privacy First regrets that the Council of State was unwilling to declare the storage of fingerprints unlawful on strictly principal grounds (that is, because of a lack of societal necessity, proportionality and subsidiarity), but merely on the basis of technical imperfections. Therefore, Privacy First will advise the concerned citizens to keep on litigating all the way up to the European Court of Human Rights (ECtHR) in Strasbourg. Considering the existing Strasbourg case law, there is a high likeliness that the Netherlands will still be condemned on principal grounds on account of violation of the right to privacy (art. 8 European Convention on Human Rights, ECHR). Privacy First also expects a condemnation on account of violation of the right of access to justice and an effective legal remedy (art. 6 and 13 ECHR). After all, civil litigation against the Dutch Passport Act proved to be impossible, and administrative legal action was possible only indirectly after the rejection of individual requests for new passports or ID cards (in case the applicants refused to have their fingerprints taken). In order to obtain their current victory before the Council of State, these citizens thus have had to get by for years without passports or ID cards, with all the problems and risks this entailed.
Exceptions for conscientious objectors
In today’s judgement, the Council of State also decided that the compulsory taking of two fingerprints for a new passport applies equally to everyone and that there can be no exceptions for people who do not want to have their fingerprints taken out of conscientious objections. Privacy First is doubtful whether this verdict will stand the scrutiny of the ECtHR. Apart from a violation of the right to privacy, it seems this decision is also in breach of the freedom of conscience (art. 9 ECHR). The fact that the European Passport Regulation does not include such an exception is irrelevant as this Regulation is subordinate to the ECHR.
RFID chips and facial scans
Privacy First also deplores the fact that the Council of State was not prepared to make a critical assessment of the risks of Radio Frequency Identification (RFID) chips (which include sensitive personal data that can be read remotely) in passports and ID cards. The same goes for the compulsory storage of facial scans in municipal databases. But these aspects, too, can still be challenged in Strasbourg.
Municipalities’ own responsibility
A small ray of hope in the judgement by the Council of State is that municipalities and mayors have their own responsibility to respect human rights (including the right to privacy) independently, even if this means independently refraining from applying national legislation because it violates higher international or European law:
"Insofar as the mayor claims that there is no possibility to deviate from the provisions (laid down in national law), the [Council of State] holds that pursuant to Article 94 of the [Dutch] Constitution, current statutory provisions within the Kingdom [of the Netherlands] do not apply if such application is not compatible with any binding provisions of treaties and of resolutions of international organizations.’’ (Source in Dutch, paragraph 6.)
This decision by the Council of State applies to all domains and could have far-reaching consequences in the future.
New ID cards for free
The ruling of the Council of State entails that for applications of new ID cards, fingerprints have been taken (and stored) on a massive scale but without a legal basis since 2009. Accordingly, Privacy First advises everyone in the possession of an ID card with fingerprints to change it (if desired) at his or her municipality for a free new one without fingerprints. If municipalities refuse to offer this service, Privacy First reserves the right to take new legal steps in this regard.
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!
In the Dutch Citizens v. Plasterk case about the international exchange of data between secret services, the coalition of citizens and organizations (including Privacy First) has explained its appeal before the Hague Court of Appeals. In its statement of appeal, which was submitted to the Court on 2 February 2016, the coalition details why the ruling of the district court of The Hague (in Dutch) is wrong.
In summary, the district court of the Hague has ruled that the collaboration and exchange of data on the basis of trust between Dutch secret services and foreign secret services (among which the American NSA) may simply be continued. According to the judge, the importance of national security is the determining factor, thereby essentially giving the Dutch AIVD (general intelligence and security service) and MIVD (military intelligence and security service) carte blanche to collect bulk data of Dutch citizens via foreign intelligence agencies without any legal protection, only because of the designation ‘national security’.
The Citizens v. Plasterk coalition deems this ruling to be in flagrant breach of the right to privacy and has lodged an appeal. It must be noted that the coalition isn’t seeking to ban the collaboration with foreign services as such. However, we find that when it comes to collaborating and receiving data, strict safeguards should be maintained. Failure to do so means that data that has been obtained by the NSA and other intelligence services in violation of Dutch law, illegally end up in the hands of Dutch intelligence services. This comes down to the laundering of data through an illegitimate U-turn.
"By using NSA data, minister Plasterk and his services are laundering illegally obtained data. This case should put an end to that", says our lawyer Christiaan Alberdingk Thijm of bureau Brandeis. Read our entire statement of appeal HERE (pdf in Dutch).
The Dutch government will first have to react to our statement of appeal in a statement of defence on appeal, after which the Hague Court of Appeals will schedule a hearing and render a ruling.
Meanwhile, our coalition has been admitted to intervene in the legal proceedings against the British government that the British organization Big Brother Watch et al. have brought before the European Court of Human Rights (ECtHR). This is a significant development because as a result, the ECtHR may, at an early stage, be able to issue a verdict that is relevant to our Dutch case. Click HERE (pdf) for the recent decision on admissibility by the European Court and HERE for more information about the British case on the Court's website.
The Citizens v. Plasterk case
At the end of 2013, the Citizens v. Plasterk coalition summoned the Dutch government, represented by the Dutch minister of the Interior, Ronald Plasterk. This was prompted by Edward Snowden’s revelations about the practices of (foreign) intelligence services. The coalition demands that the Netherlands stops using data that have been obtained in violation of Dutch law.
In February 2014 the case almost led to minister Plasterk’s withdrawal from office. It had emerged that Plasterk had wrongfully informed the Dutch House of Representatives on the exchange of data between Dutch and foreign intelligence services. The Dutch services had passed on 1.8 million items of data to the Americans and not the other way around, as he had previously claimed.
In July 2014 the district court of The Hague rejected the claims of the coalition, after which the coalition lodged an appeal before the Hague Court of Appeals.
At the end of 2015 it became known that the coalition may participate in a British lawsuit before the European Court of Human Rights in Strasbourg.
The participating citizens in the coalition are: Rop Gonggrijp, Jeroen van Beek, Bart Nooitgedagt, Brenno de Winter and Mathieu Paapst. The participating organizations are: the Privacy First Foundation, the Dutch Association of Defence Counsel (NVSA), the Dutch Association of Journalists (NVJ) and Internet Society Netherlands.
The case is taken care of by bureau Brandeis, in particular by our lawyers Christiaan Alberdingk Thijm and Caroline de Vries, who make use of the bureau Brandeis’s pro-bono fund.
Update 9 February, 2016: today the coalition submitted its written submissions to the European Court of Human Rights, click HERE (pdf).
"Facebook continues to breach personal data privacy rights in Europe, says a group of human rights organizations, and it demands that Facebook’s EU-US data transfers stop by February 6, 2016. Facebook has formally responded.
As previously reported, the Privacy First Foundation, Public Interest Litigation Project PILP and the Dutch Platform for the Protection of Civil Rights (collectively, “Privacy First”) sent Facebook a demand letter, to which Facebook has now replied in writing.
Facebook’s written response
Facebook responded to Privacy First’s demand letter by giving written assurances of data protection in accordance with current law–that is, those parts of the Privacy Directive that survived the ruling in Schrems, the case that invalidated Safe Harbor.
Specifically, Facebook states that “the grounds for transfer of data set out in Article 26 of the Directive remain entirely lawful,” and that it complies with “these other grounds to transfer data legally from the European Union to the United States .” Facebook further challenged the Dutch tribunal Privacy First plans to use, as lacking competence over Facebook Ireland, the party it asserts is the data controller for data of Facebook Netherlands.
Privacy First’s reply
Privacy First, in its reply through its counsel Boekx, Amsterdam, reiterated its position that the other instruments currently used as basis for EU-US data transfers (such as Standard Contractual Clauses or individual consent) are “fundamentally flawed, as these options do not resolve the problems identified by the European Court of Justice in the Schrems judgment.”
Privacy First’s reply further reserves its rights to initiate legal proceedings in the Hague “requesting a preliminary injunction and/or raising prejudicial questions with the European Court of Justice” if Facebook doesn’t stop EU-US data transfers or provide adequate protections by February 6th, 2016.
Clearly, Privacy First and its co-plaintiffs are not happy with Facebook's response. (...)
Facebook’s letter also challenges the competence of Dutch courts to hear proceedings in the Netherlands against Facebook Ireland, which it alleges is the true data controller, not Facebook Netherlands B.V. Regarding the competence issue, [Boekx] said that Dutch courts have rendered decisions in the past against both Facebook parties.
As reported, the EU and US are currently negotiating replacement of the Safe Harbor Agreement; there is a meeting of the negotiating parties scheduled for February 2nd to discuss EU-US data transfers and how to ensure protections for EU citizens in the legal uncertainties left by Schrems.
Further delays possible
Due to delay in legislation in the U.S. that may be one of the EU’s preconditions to Safe Harbor (the Judicial Redress Act), further delays in Safe Harbor resolution are expected (by some) that could take those negotiations beyond the February 6 deadline set by Privacy First. These delays could set Facebook up for proceedings that, if successful, would result in a shutdown of its EU-US data transfers. (...)"
Source: http://www.forbes.com/sites/lisabrownlee/2016/01/27/facebook-fires-back-in-eu-privacy-dispute/#2fe9f2801d5b, 27 January 2016.