The controversial and compulsory inclusion of fingerprints in passports has been in place in the EU since 2009. From that year on, fingerprints were also included in Dutch identity cards, even though under EU law there was no such obligation. While the inclusion of fingerprints in identity cards in the Netherlands was reversed in January 2014 due to privacy concerns, there is now new European legislation that will make the inclusion of fingerprints in identity cards compulsory as of August 2, 2021.
Dutch citizens can apply for a new identity card without fingerprints until August 2. After that, only people can do so who are ‘temporarily or permanently unable physically to have fingerprints taken’.
The Dutch Senate is expected to debate and vote on the amendment of the Dutch Passport Act in connection with the reintroduction of fingerprints in Dutch identity cards on July 13. In that context, Privacy First sent the following email to the Dutch Senate yesterday:
Dear Members of Parliament,
Since Privacy First was founded in 2008, we have opposed the mandatory collection of fingerprints for passports and identity cards. Since the introduction of the new Passport Act in 2009, Privacy First has done so through lawsuits, campaigns, freedom of information requests, political lobbying and by activating the media. Despite the subsequent Dutch discontinuation of the (planned) central storage of fingerprints in both national and municipal databases in 2011, everyone’s fingerprints are still taken when applying for a passport, and soon (as a result of the new European Regulation on ID cards) again for Dutch ID cards after this was retracted in 2014.
To date, however, the millions of fingerprints taken from virtually the entire adult population in the Netherlands have hardly been used in practice, as the biometric technology had already proven to be unsound and unworkable in 2009. The compulsory collection of everyone’s fingerprints under the Dutch Passport Act therefore still constitutes the most massive and longest-lasting privacy violation that the Netherlands has ever known.
Having read the current report of the Senate on the amendment of the Passport Act to reintroduce fingerprints in ID cards, Privacy First hereby draws your attention to the following concerns. In this context, we ask you to vote against the amendment of the law, in contravention of European policy. After all:
- As early as May 2016, the Dutch Council of State (Raad van State) ruled that fingerprints in Dutch identity cards violated the right to privacy due to a lack of necessity and proportionality, see https://www.raadvanstate.nl/pers/persberichten/tekst-persbericht.html?id=956 (in Dutch).
- Freedom of information requests from Privacy First have revealed that the phenomenon to be tackled (look-alike fraud with passports and identity cards) is so small in scale that the compulsory collection of everyone’s fingerprints is completely disproportionate and therefore unlawful. See: https://www.privacyfirst.nl/rechtszaken-1/wob-procedures/item/524-onthullende-cijfers-over-look-alike-fraude-met-nederlandse-reisdocumenten.html.
- In recent years, fingerprints in passports and identity cards have had a biometric error rate as high as 30%, see https://zoek.officielebekendmakingen.nl/kst-32317-163.html (Dutch State Secretary Teeven, January 31, 2013). Before that, Minister Donner (Security & Justice) admitted an error rate of 21-25%: see https://zoek.officielebekendmakingen.nl/kst-25764-47.html (April 27, 2011). How high are these error rates today?
- Partly because of the high error rates mentioned above, fingerprints in passports and ID cards are virtually not used to date, either domestically, at borders or at airports.
- Because of these high error percentages, former Dutch State Secretary Bijleveld (Interior and Kingdom Relations) instructed all Dutch municipalities as early as September 2009 to (in principle) refrain from conducting biometric fingerprint verifications when issuing passports and identity cards. After all, in the event of a ‘mismatch’, the ID document concerned would have to be returned to the passport manufacturer, which would lead to rapid societal disruption if the numbers were high. In this respect, the Ministry of the Interior and Kingdom Relations was also concerned about large-scale unrest and even possible violence at municipal counters. These concerns and the instruction of State Secretary Bijleveld still apply today.
- Since 2016, several individual Dutch lawsuits are still pending at the European Court of Human Rights in Strasbourg, challenging the mandatory issuing of fingerprints for passports and ID cards on the grounds of violation of Art. 8 ECHR (right to privacy).
- In any case, an exception should be negotiated for people who, for whatever reason, do not wish to give their fingerprints (biometric conscientious objectors, Art. 9 ECHR).
- Partly for the above reasons, fingerprints have not been taken for the Dutch identity card since January 2014. It is up to your Chamber to maintain this status quo and also to push for the abolition of fingerprints for passports.
For background information, see the report ‘Happy Landings' by the Scientific Council for Government Policy (WRR) that Privacy First director Vincent Böhre wrote in 2010. Partly as a result of this critical report (and the large-scale lawsuit brought by Privacy First et al. against the Passport Act), the decentralized (municipal) storage of fingerprints was largely abolished in 2011 and the planned central storage of fingerprints was halted.
For further information or questions regarding the above, Privacy First can be reached at any time.
The Privacy First Foundation
As an NGO that promotes civil rights and privacy protection, Privacy First has been concerned with financial privacy for years. Since 2017, we have been keeping close track of the developments surrounding the second European Payment Services Directive (PSD2), pointing out the dangers to the privacy of consumers. In particular, we focus on privacy issues related to ‘account information service providers’ (AISPs) and on the dangerous possibilities offered by PSD2 to process personal data in more extensive ways.
At the end of 2017, we assumed that providing more adequate information and more transparency to consumers would be sufficient to mitigate the risks associated with PSD2. However, these risks turned out to be greater and of a more fundamental nature. We therefore decided to launch a bilingual (Dutch & English) website called PSD2meniet.nl in order to outline both our concerns and our solutions with regard to PSD2.
Central to our project is the Don’t-PSD2-Me-Register, an idea we launched on 7 January 2019 in the Dutch television program Radar and in this press release. The aim of the Don’t-PSD2-Me-Register is to provide a real tool to consumers with which they can filter out and thus protect their personal data. In time, more options to filter out and restrict the use of data should become available. With this project, Privacy First aims to contribute to positive improvements to PSD2 and its implementation.
Protection of special personal data
In this project, which is supported by the SIDN Fund, Privacy First has focused particularly on ‘special personal data’, such as those generated through payments made to trade unions, political parties, religious organizations, LGBT advocacy groups or medical service providers. Payments made to the Dutch Central Judicial Collection Agency equally reveal parts of people’s lives that require extra protection. These special personal data directly touch upon the issue of fundamental human rights. When consumers use AISPs under PSD2, their data can be shared more widely among third parties. PSD2 indirectly allows data that are currently protected, to become widely known, for example by being included in consumer profiles or black lists.
The best form of protection is to prevent special personal data from getting processed in the first place. That is why we have built the Don’t-PSD2-Me-Register, with an Application Programming Interface (API) – essentially a privacy filter – wrapped around it. With this filter, AISPs can detect and filter out account numbers and thus prevent special personal data from being unnecessarily processed or provided to third parties. Moreover, the register informs consumers and gives them a genuine choice as to whether or not they wish to share their data.
We have outlined many of the results we have achieved in a Whitepaper, which has been sent to stakeholders such as the European Commission, the European Data Protection Board (EDPB) and the Dutch Data Protection Authority. And of course, to as many AISPs as possible, because if they decide to adopt the measures we propose, they would be protecting privacy by design. Our Whitepaper contains a number of examples and good practices on how to enhance privacy protection. Among other things, it lays out how to improve the transparency of account information services. We hope that AISPs will take the recommendations in our Whitepaper to heart.
Our Application Programming Interface (API) has already been adopted by a service provider called Gatekeeper for Open Banking. We support this start up’s continued development, and we make suggestions on how the privacy filter can be best incorporated into their design and services. When AISPs use Gatekeeper, consumers get the control over their data that they deserve.
Knowing that the European Commission will not be evaluating PSD2 until 2022, we are glad to have been able to convey our own thoughts through our Whitepaper. Along with the API we have developed and distributed, it is an important tool for any AISP that takes the privacy of its consumers seriously.
Privacy First will continue to monitor all developments related to the second Payment Services Directive. Our website PSD2meniet.nl will remain up and running and will continue to be the must-visit platform for any updates on this topic.
It is with great concern that Privacy First has taken note of the Dutch draft bill on COVID-19 test certificates. Under this bill, a negative COVID-19 test certificate will become mandatory for access to sporting and youth activities, all sorts of events and public places including bars and restaurants and cultural and higher education institutions, Those who have no such certificates risk getting high fines. This will put pressure on everyone's right to privacy.
Serious violation of fundamental rights
The draft bill severely infringes numerous fundamental and human rights, including the right to privacy, physical integrity and freedom of movement in combination with other relevant human rights such as the right to participate in cultural life, the right to education and various children’s rights such as the right to recreation. Any curtailment of these rights must be strictly necessary, proportionate and effective. However, the current draft bill fails to demonstrate this, while the required necessity in the public interest is simply assumed. More privacy-friendly alternatives to reopen and normalize society do not seem to have been considered. For these reasons alone, the proposal cannot pass the human rights test and should therefore be withdrawn.
The proposal also violates the general prohibition of discrimination, as it introduces a broad social distinction based on medical status. This puts pressure on social life and may lead to large-scale inequality, stigmatization, social segregation and even possible tensions, as large groups in society will not (or not systematically) want to or will not be able to get tested (for various reasons). During the recent Dutch National Privacy Conference organized by Privacy First and the Platform for the Information Society (ECP), it already became clear that the introduction of a mandatory ‘corona passport’ could have a socially disruptive effect. On that occasion the Dutch Data Protection Authority, among others, took a strong stand against it. Such social risks apply all the more strongly to the indirect vaccination obligation that follows on from the corona test certificate. In this regard, Privacy First wants to recall that recently both the Dutch House of Representatives and the Parliamentary Assembly of the Council of Europe have expressed their opposition to a direct or indirect vaccination requirement. In addition, the draft bill under consideration will have the potential to set precedents for other medical conditions and other sectors of society, putting pressure on a much broader range of socio-economic rights. For all of these reasons, Privacy First strongly recommends that the Dutch government withdraw this draft bill.
Multiple privacy violations
Moreover, from the perspective of the right to privacy, a number of specific objections and questions apply. First of all, the draft bill introduces a mandatory ‘proof of healthiness’ for participation in a large part of social life, in flagrant violation of the right to privacy and the protection of personal data. Also, the draft bill introduces an identification requirement at the entrance of public places, in violation of the right to anonymity in public spaces. The bill also results in the inconsistent application of existing legislation to the same act, namely testing, with far-reaching consequences on the one hand for a precious achievement like medical confidentiality and the trust of citizens in that confidentiality, and on the other hand for the practical implementation of retention periods while the processing of the test result does not change. After all, it is not the result of the test that should determine whether the file falls under the Dutch Medical Treatment Contracts Act (WGBO, which has a medical secrecy requirement and a retention period of 20 years) or under the Public Health Act (with a retention period of five years), but the act of testing itself. Moreover, it is unclear why the current draft bill seeks to connect to the Public Health Act and/or WGBO if it only concerns obtaining a test certificate for the purpose of participating in society (and therefore no medical treatment or public health task for that purpose). Here, the only possibility for processing and for breaching medical confidentiality should be the basis of consent. In this case, however, there cannot be the legally required freely given consent, since testing will be a compelling condition for participation in society.
Privacy requires clarity
Many other issues are still unclear: which data will be stored, where, by whom, and which data may possibly be exchanged? To what extent will there be personal localization and identification as opposed to occasional verification and authentication? Why may test results be kept for an unnecessarily long time (five or even 20 years)? How great are the risks of hacking, data breaches, fraud and forgery? To what extent will there be decentralized, privacy-friendly technology, privacy by design, open source software, data minimization and anonymization? Will test certificates remain free of charge and to what extent will privacy-friendly diversity and choice in testing applications be possible? Is work already underway to introduce an ‘alternative digital carrier’ in place of the Dutch CoronaCheck app, namely a chip, with all the risks that entails? How will function creep and profiling be prevented and are there any arrangements when it comes to data protection supervision? Will non-digital, paper alternatives always remain available? What will happen to the test material taken, i.e. everyone’s DNA? And when will the corona test certificates be abolished?
As long as such concerns and questions remain unanswered, submission of this bill makes no sense at all and the corona test certificate will only lead to the destruction of social capital. Privacy First therefore reiterates its request that the current proposal be withdrawn and not submitted to Parliament. Failing this, Privacy First will reserve the right to have the matter reviewed by the courts and declared unlawful.
 See the Dutch National Privacy Conference, 28 January 2021, https://youtu.be/asEX1jy4Tv0?t=9378, starting at 2h 36 min 18 sec.
 See Council of Europe, Parliamentary Assembly, Resolution 2361 (2021): Covid-19 vaccines: ethical, legal and practical considerations, https://pace.coe.int/en/files/29004/html, par. 7.3.1-7.3.2: “Ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves; ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated.” See also, for example, Dutch House of Representatives, Motion by Member Azarkan on No Corona Vaccination Obligation (28 October 2020), Parliamentary Document 25295-676, https://zoek.officielebekendmakingen.nl/kst-25295-676.html: "The House (...) pronounces that there should never be a direct or indirect coronavirus vaccination obligation in the future"; Motion by Member Azarkan on Access to Public Benefits for All Regardless of Vaccination or Testing Status (5 January 2021), Parliamentary Document 25295-864, https://zoek.officielebekendmakingen.nl/kst-25295-864.html: "The House (...) requests the government to enable access to public services for all regardless of vaccination or testing status.’
Under the Corona Pandemic Emergency Act, the Dutch government has the option to introduce all kinds of restrictive measures, including the wide-ranging and mandatory use of face masks. This is unless the Dutch House of Representatives rejects this measure later this week. In this context, Privacy First today has sent the following email to the House of Representatives:
Dear Members of Parliament,
On 19 November, the government submitted to you the Regulation concerning additional requirements for face masks under COVID-19. Under this regulation, wearing a face mask will become mandatory in numerous places (including shops, railway stations, airports and schools) as of 1 December 2020. This obligation can be periodically extended by the government without the consent of Parliament. Based on the Corona Pandemic Emergency Act, you currently have seven days to exercise your right of veto and prevent the entry into force of a wide-ranging face mask obligation. By 26 November at the latest, you will be able to vote on this issue and reject this measure.
The wearing of face masks has been the subject of much public debate for months. Both the government and the National Institute for Public Health and the Environment (RIVM) have repeatedly stated that wearing non-medical face masks is hardly effective in combating the coronavirus. Scientists seem to be divided on this. At the same time, wearing a face mask can also have the opposite effect, i.e. harm people's health. There is a consensus, however, that in a legal sense the compulsory use of face masks is an infringement of the right to privacy and self-determination.
This accordingly falls within the scope of Privacy First. The right to privacy is a universal human right that is protected in the Netherlands by international and European treaties and by our national Constitution. Any infringement of the right to privacy must therefore be strictly necessary, proportionate and effective. If that is not the case, it is an unjustified breach and therefore a violation of the right to privacy, both as a human right and as a constitutional right. As long as the wearing of non-medical face masks to deafeat the coronavirus has not proven effective and can even have adverse health effects, there cannot be any social necessity for the introduction of a general face mask obligation. Such an obligation would thus amount to a social experiment with unforeseen consequences. This is not in keeping with a free and democratic constitutional society under the rule of law. Privacy First therefore advises you to reject the proposed regulation for the introduction of compulsory face masks and instead propose to continue wearing them on a voluntary basis.
The Privacy First Foundation
In the fight against the coronavirus, the Dutch government this week made clear that the introduction of a curfew is imminent. Because of this, Privacy First today has sent the following appeal to the Dutch House of Representatives:
Dear Members of Parliament,
This week the Netherlands finds itself at a historical human rights crossroads: is a nation-wide curfew going to be introduced for the first time since World War II? For Privacy First such a far-reaching, generic measure would be disproportionate and far from necessary in virtually every situation. Moreover, in the fight against the coronavirus the effectiveness of such a measure remains unknown to this date. For that alone, there can be no legally required social necessity of a curfew. A curfew could in fact also be counterproductive, as it would harm the mental and (therefore also) physical health of large groups in society. Besides, a curfew in the Netherlands is yet another step towards a surveillance society. The use of lighter, targeted and more effective measures is always preferable. Should a curfew nonetheless be introduced, Privacy First would consider it a massive violation of the right to privacy and freedom of movement. Privacy First therefore calls on you to not let this happen and to thwart the introduction of a curfew.
The Privacy First Foundation
Update 17 February 2021: this week, in summary proceedings, the district court of The Hague handed down a ground-breaking ruling that says that the curfew was wrongly introduced under the Dutch Extraordinary Powers Act. The current Dutch curfew is therefore unlawful. Moreover, the court found that there are "major question marks regarding the factual substantiation by the State of the necessity of the curfew. (...) Before a far-reaching restriction such as a curfew is introduced, it must be clear that no other, less far-reaching measures are available and that the introduction of the curfew will actually have a substantial effect", stated the court, without the conviction that this was the case. In addition, the court raised the question of why an urgent (but voluntary) curfew advice had not been chosen. The court also noted that "the Dutch Outbreak Management Team, according to the team itself, has no evidence that the curfew will make a substantial contribution to reducing the spread of the virus." All this "makes the State's assertion that a curfew is inevitable at least debatable and without convincing justification", the court concluded. (See judgment (in Dutch), paragraphs 4.12-4.14.)
The judgment of the district court of The Hague is in line with Privacy First’s earlier position. Privacy First hopes that this will be confirmed on appeal by the Hague Court of Appeal and that it will also lead to the rejection of the curfew by both the Dutch House of Representatives and the Senate.
A Dutch court has today handed down a judgment in preliminary injunction proceedings brought by Privacy First concerning the UBO register. The district court of The Hague confirmed that there is every reason to doubt the legality of the European money laundering directives which are the foundation of the UBO register. On this point the judge follows the very critical opinion of the European Data Protection Supervisor. The interim proceedings court rules that it cannot be excluded that the Court of Justice of the European Union (CJEU) will come to the conclusion that the public character of the UBO register is at odds with the proportionality principle. Questions over its legality were recently referred to the CJEU by a Luxembourg national court. As such, the Dutch court felt there is no need to do the same.
Privacy First had also requested a temporary deactivation of the UBO register. This, however, is a step too far for the court, which states that deactivating the register is not possible as long as the underlying EU guideline is still in force. It would put the Netherlands in a position in which it operates in violation of the European guideline. With this claim, the judge says, Privacy First is getting ahead of itself. Privacy First will examine the ruling on this point, also in view of possibly going into appeal.
‘The introduction of the UBO register would mean that privacy-sensitive data of millions of people will be up for grabs’, comments Privacy First’s attorney Otto Volgenant of Boekx Attorneys.’On all sides there are strong doubts whether this is actually an effective means in the fight against money laundering and terrorism. It’s like using a sledgehammer to crack a nut. The Court of Justice of the European Union will eventually adjudicate the case, and I expect it will annul the UBO register.’
At the start of this year, the Privacy First Foundation initiated fundamental legal action against the Dutch government on account of the new UBO register, which is linked to the Trade Register of the Dutch Chamber of Commerce. Under the law the UBO register is based on, all 1.5 million Dutch legal entities that are included in the Trade Register will have to make public all sorts of privacy-sensitive data about their Ultimate Beneficial Owners. This concerns personal data of millions of directors, shareholders and high executives of companies (including family businesses), foundations, associations, churches, social organizations, charities, etc. Privacy First deems that this is a massive privacy violation, one which also creates personal safety risks. That is why Privacy First has asked the court to immediately declare the UBO register unlawful. A lot of information in the register will be publicly available and can be requested by anyone. In Privacy First’s opinion this is completely disproportionate and an infringement of European privacy law. The CJEU will examine whether the European legislation on which the UBO register is based violates the fundamental right to privacy.
The ruling (in Dutch) by the interim proceedings court can be found here: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2021:2457.
Update 15 April 2021: yesterday Privacy First filed an urgent appeal against the entire judgment with the Court of Appeal of The Hague. The appeal subpoena can be found HERE (pdf in Dutch). Privacy First requests the Court, inter alia, to ask preliminary questions about the UBO register to the European Court of Justice and to suspend the UBO register until these questions are answered. In view of the major interests at stake, Privacy First hopes that the Court of Appeal of The Hague will hear this case as soon as possible.
Update 17 August 2021: the court hearing in the urgent appeal of Privacy First against the judgment will take place on Monday 27 September at the Court of Appeal in The Hague.
Privacy First initiates legal action against the Dutch government on account of the recently-introduced UBO register. The preliminary injunction proceedings point at the invalidity of the legislation on which this register is based. The consequences of this new piece of legislation are far-reaching as the register contains very privacy-sensitive information. Data relating to the financial situation of natural persons will be up for grabs. More than 1.5 million legal entities that are registered in the Dutch Trade Register will have to make public details about their Ultimate Beneficial Owners (UBOs). The UBO register is publicly accessible: a request for information costs €2.50.
The UBO register aims to prevent money laundering but will lead to defamation.
The privacy breach that is the result of the UBO register and the public accessibility of sensitive data are disproportionate. The goal of the register is to thwart money laundering and terrorist financing. In order to achieve this goal there is no need for a UBO register, at least not one that is publicly accessible.
That is why Privacy First wants the UBO register to be rendered inoperative by a court, which, in case necessary, should submit questions of interpretation to the highest court in Europe: the European Court of Justice. In cases like these, the judiciary will have the final say. It is not uncommon for a court to overrule privacy-violating legislation and in this respect, Privacy First’s litigation has been successful in the past.
The proceedings will take place before The Hague District Court on 25 February 2021 at 12pm. The entire summons can be found HERE (pdf in Dutch). The ruling will follow two or three weeks after the hearing.
Background of the UBO register case
On 24 June 2020, the Dutch ‘Implementation Act for the Registration of Ultimate Beneficial Owners of Companies and Other Legal Entities’ came into effect in the Netherlands. On the basis of this new Act, a new UBO register which is linked to the Commercial Register of the Dutch Chamber of Commerce will contain information about all ultimate beneficial owners of companies and other legal entities founded in the Netherlands. The register should indicate how many shares are owned by the UBO: 25-50%, 50-75% or more than 75%. Furthermore, the name, month and year of birth as well as the nationality of the UBO will be made public, with all the privacy risks this entails.
Since 27 September 2020, newly founded entities have to register the ultimate beneficial owners in the UBO register. Existing legal entities will have to do so before 27 March 2022.
The Act provides very few possibilities to safeguard information. This is possible only for persons that are protected by the police, minors and those placed under guardianship. This means that the shares of practically every UBO will become a matter of public record. Anyone has access to the UBO register, with extracts coming at a price of €2.50.
European money laundering directive
The new Act stems from the fifth European money laundering directive, which obliges EU Member States to register UBOs and disclose their details to the public. According to the European legislator, this contributes to the proclaimed objective of countering money laundering and terrorist financing. The transparency is supposed to be a deterrent for persons who set out to launder money or finance terrorism.
Massive privacy violation and fundamental criticism
The question is whether this produces a windfall effect. Registering the personal data of all UBOs and making these publicly available is a generic precautionary measure. 99.99% of UBOs have nothing to do with money laundering or terrorist financing. Even if it were proportionate to collect information on all UBOs, making that information available only to government agencies engaged in combating money laundering and terrorism should suffice. It is not appropriate to disclose that information to everyone. The European Data Protection Supervisor (EDPS) deemed this privacy violation to be disproportionate. This opinion, however, did not lead to an amendment of the European Directive.
When this Act was discussed in Dutch Parliament, fundamental criticism came from various corners of society. The business community made its voice heard because it perceived privacy risks and feared − and now indeed experiences − an increase in costs. UBOs of family-owned companies that have remained out of the public eye up until now are running major privacy and security risks. There was also a great deal of attention for the position of social organizations − such as church communities and NGOs − that attach great importance to the protection of those affiliated with them. Associations and foundations that do not have owners face a different burden: they have to put the data that are already in the Trade Register in yet another register. Unfortunately these complaints have not resulted in any changes to the legislation.
Legal proceedings look promising
Privacy First has initiated legal proceedings against the UBO register for violation of the fundamental right to privacy and the protection of personal data. Privacy First asks the Dutch court to render the UBO register inoperative in the short term and, if necessary, to submit questions of interpretation on this matter to the highest court in Europe, the Court of Justice of the European Union.
The Dutch Act as well as the underlying European directive are in conflict with both the European Charter of Fundamental Rights and the GDPR. It is the legislator who has created this legislation, but it will be up to the court to do a thorough review thereof. Ultimately, the court has the last word. If the (European) legislator fails to take adequate account of the protection of fundamental rights, then the (European) court can invalidate this legislation. This would not be unique. The Court of Justice of the European Union has previously declared legislation invalid due to privacy violations, for example the Data Retention Directive and, more recently, the Privacy Shield. Dutch courts too regularly annul privacy-invading regulations. Privacy First has previously successfully challenged the validity of legislation, for example in the proceedings concerning the Telecommunications Data Retention Act and the System Risk Indication (SyRI). Viewed against this background, a positive outcome in the case against the UBO register is all but unlikely.
This week the Dutch House of Representatives will debate the ‘temporary’ Corona emergency law under which the movements of everyone in the Netherlands can henceforth be monitored ‘anonymously’. Privacy First has previously criticized this plan in a television broadcast by current affairs program Nieuwsuur. Subsequently, today Privacy First has sent the following letter to the House of Representatives:
Dear Members of Parliament,
With great concern, Privacy First has taken note of the ‘temporary’ legislative proposal to provide COVID-19 related telecommunications data to the Dutch National Public Health Institute (RIVM). Privacy First advises to reject this proposal on account of the following fundamental concerns and risks:
Violation of fundamental administrative and privacy principles
- There is no societal necessity for this legislative proposal. Other forms of monitoring have already proven sufficiently effective. The necessity of this proposal has not been demonstrated and there is no other country where the application of similar technologies made any significant contribution.
- The proposal is entirely disproportionate as it encompasses all telecom location data in the entire country. Any form of differentiation is absent. The same applies to data minimization: a sample would be sufficient.
- The proposal goes into effect retroactively on 1 January 2020. This violates legal certainty and the principle of legality, particularly because this date is long before the Dutch ‘start’ of the pandemic (11 March 2020).
- The system of ‘further instructions from the minister’ that has been chosen for the proposal is completely undemocratic. This further erodes the democratic rule of law and the oversight of parliament.
- The proposal does not mention 'privacy by design' or the implementation thereof, while this should actually be one of its prominent features.
Alternatives are less invasive: subsidiarity
- The State Secretary failed to adequately investigate alternatives which are more privacy friendly. Does she even have any interest in this at all?
- Data in the possession of telecom providers are pseudonymized with unique ID numbers and as such are submitted to Statistics Netherlands (CBS). This means that huge amounts of sensitive personal data become very vulnerable. Anonymization by CBS happens only at a later stage.
- When used, the data are filtered based on geographical origin. This creates a risk of discrimination on the basis of nationality, which is prohibited.
- It is unclear whether the CBS and the RIVM intend to ‘enrich’ these data with other data, which could lead to function creep and potential data misuse.
Lack of transparency and independent oversight
- Up until now, the Privacy Impact Assessment (PIA) of the proposal has not been made public.
- There is no independent oversight on the measures and effects (by a judge or an independent commission).
- The GDPR may be applicable to the proposal only partially as anonymous data and statistics are exempt from the GDPR. This gives rise to new risks of data misuse, poor digital protection, data breaches, etc. General privacy principles should therefore be made applicable in any case.
Structural changes and chilling effect
- This proposal seems to be temporary, but the history of similar legislation shows that it will most likely become permanent.
- Regardless of the ‘anonymization’ of various data, this proposal will make many people feel like they are being monitored, which in turn will make them behave unnaturally. The risk of a societal chilling effect is huge.
Faulty method with a significant impact
- The effectiveness of the legislative proposal is unknown. In essence, it constitutes a large scale experiment. However, Dutch society is not meant to be a living laboratory.
- By means of data fusion, it appears that individuals could still be identified on the basis of anonymous data. Even at the chosen threshold of 15 units per data point, the risk of unique singling out and identification is likely still too large.
- The proposal will lead to false signals and blind spots due to people with several telephones as well as vulnerable groups without telephones, etc.
- There is a large risk of function creep, of surreptitious use and misuse of data (including the international exchange thereof) by other public services (including the intelligence services) and future public authorities.
- This proposal puts pressure not just on the right to privacy, but on other human rights as well, including the right to freedom of movement and the right to demonstrate. The proposal can easily lead to structural crowd control that does not belong in a democratic society.
Specific prior consent
Quite apart from the above concerns and risks, Privacy First doubts whether the use of telecom data by telecom providers, as envisaged by the legislative proposal, is lawful in the first place. In the view of Privacy First, this would require either explicit, specific and prior consent (opt-in) from customers, or the possibility for them to opt-out at a later stage and to have the right to have all their data removed.
It is up to you as Members of Parliament to protect our society from this legislative proposal. If you fail to do so, Privacy First reserves the right to take legal action against this law.
The Privacy First Foundation
With great concern, Privacy First has taken note of the intention of the Dutch government to employ special apps in the fight against the coronavirus. In Privacy First’s view, the use of such apps is a dangerous development because it could lead to stigmatisation and numerous unfounded suspicions, and may also cause unnecessary unrest and panic. Even when ‘anonymized’, the data from these apps can still be traced back to individuals through data fusion. In case this technology will be introduced on a large scale, it will result in a surveillance society in which everyone is being continuously monitored – something people will be acutely aware of and would lead to an imminent societal chilling effect. Furthermore, there is a substantial risk that the collected data will be used and misued for multiple (illegitimate) purposes by companies and public authorities. Moreover, if these data fall into the hands of criminal organizations, they will be a gold mine for criminal activities. For Privacy First, these risks of Corona apps do not outweigh their presumed benefits.
The right to anonymity in public space is a fundamental right, one that is crucial for the functioning of our democratic constitutional State. Any democratic decision to nullify this right is simply unacceptable. If indeed the deployment of ‘Corona apps’ will be widespread, then at least their use should be strictly anonymous and voluntary. That is to say, they should be used only for a legitimate, specific purpose, following individual, prior consent without any form of outside pressure and on the premise that all the necessary information is provided. In this respect, privacy by design (embedding privacy protection in technology) must be a guiding principle. For Privacy First, these are stringent and non-negotiable prerequisites. In case these conditions are not met, Privacy First will not hesitate to bring proceedings before a court.
The world is hit exceptionally hard by the coronavirus. This pandemic is not only a health hazard, but can also lead to a human rights crisis, endangering privacy among other rights.
The right to privacy includes the protection of everyone’s private life, personal data, confidential communication, home inviolability and physical integrity. Privacy First was founded to protect and promote these rights. Not only in times of peace and prosperity, but also in times of crisis.
Now more than ever, it is vital to stand up for our social freedom and privacy. Fear should not play a role in this. However, various countries have introduced draconian laws, measures and infrastructures. Much is at stake here, namely preserving everyone’s freedom, autonomy and human dignity.
Privacy First monitors these developments and reacts proactively as soon as governments are about to take measures that are not strictly necessary and proportionate. In this respect, Privacy First holds that the following measures are in essence illegitimate:
- Mass surveillance
- Forced inspections in the home
- Abolition of anonymous or cash payments
- Secret use of camera surveillance and biometrics
- Every form of infringement on medical confidentiality.
Privacy First will see to it that justified measures will only apply temporarily and will be lifted as soon as the Corona crisis is over. It should be ensured that no new, structural and permanent emergency legislation is introduced. While the measures are in place, effective legal means should remain available and privacy supervisory bodies should remain critical.
Moreover, in order to control the coronavirus effectively, we should rely on the individual responsibility of citizens. Much is possible on the basis of voluntariness and individual, fully informed, specific and prior consent.
As always, Privacy First is prepared to assist in the development of privacy-friendly policies and any solutions based on privacy by design, preferably in collaboration with relevant organizations and experts. Especially in these times, the Netherlands (and the European Union) can become an international point of reference when it comes to fighting a pandemic while preserving democratic values and the right to privacy. This is the only way that the Corona crisis will not be able to weaken our world lastingly, and instead, we will emerge stronger together.