Summary proceedings against massive privacy violation by Automatic Number Plate Recognition (ANPR) camera surveillance
Challenging large-scale privacy violations in court has long been Privacy First’s established practice. In recent years, Privacy First has successfully done so against the central storage in the Netherlands of everyone’s fingerprints under the Dutch Passport Act, against the storage of everyone’s communications data under the Dutch Telecommunications Data Retention Act and – in coalition with other parties – against large-scale risk profiling of innocent citizens through the Dutch System Risk Indication (SyRI).
A current and urgent issue that equally merits going to court over, concerns the Dutch legislation on Automatic Number Plate Recognition (ANPR) which applies since 2019 under Art. 126jj of the Dutch Code of Penal Procedure. Under this piece of law, the number plate codes of millions of cars in the Netherlands (i.e. everyone’s travel movements) are stored continuously for four weeks in a central police database for criminal investigation purposes, regardless of whether one is suspected of anything. This is totally unnecessary, completely disproportionate and also ineffective, as was revealed in evaluation reports published today by the Dutch Research and Documentation Center (‘WODC’, part of the Dutch Ministry of Justice and Security). Supervision is lacking and the system can easily be abused, newspaper NRC Handelsblad recently confirmed in its reporting.
Privacy First has therefore prepared a lawsuit to have the ANPR legislation repealed on account of violation of European privacy law. Summary proceedings against the Dutch government will take place at the district court of The Hague on 10 November 2021. Through Pro Bono Connect, Privacy First has engaged CMS as the law firm that will take care of the litigation in this case. Our summons in summary proceedings can be found HERE (pdf in Dutch). If necessary, these preliminary proceedings will be followed by broader proceedings on the merits. After all, there is no doubt that the current ANPR law constitutes a massive privacy violation and simply does not belong in a free democratic society. Considering the relevant European case law, Privacy First deems the likelihood of successful legal action very high.
Case details: Privacy First vs. the State (Dutch Ministry of Justice and Security), Wednesday 10 November 2021 11.00 am, The Hague district court. You are welcome to attend the court hearing. A route description in Dutch can be found here.
Update November 8, 2021: due to Corona restrictions, it appears that the court is only willing to allow two (already registered) visitors at the court hearing. However, due to high public interest, there will be a livestream: https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Den-Haag/Nieuws/Paginas/Livestream-rechtszaak-stichting-Privacy-First-tegen-de-Staat.aspx.
Update November 10, 2021: the court hearing took place today; click HERE for our lawyer's pleading (pdf in Dutch). The court's ruling is scheduled for December 1st.
Update December 1, 2021: today the district court of The Hague rendered its judgment. In the judgment, the court first of all established that Privacy First is admissible in this case as a non-profit interest group for the protection of the privacy of all citizens in the Netherlands. This again establishes that Privacy First can conduct these and subsequent legal proceedings in the public interest. Subsequently, however, the court ruled that in these preliminary relief proceedings there was no sufficiently urgent interest. Privacy First finds this judgment incomprehensible, since in the case of a daily massive privacy violation by definition there is an urgent interest to have that violation legally reviewed and to have it stopped. Privacy First will now commence proceedings on the merits against the ANPR legislation and is also considering lodging an urgent appeal against the current judgment with the Court of Appeal of The Hague. In view of relevant European case law, Privacy First still considers the chances of successful legal action exceptionally high.
The ANPR legislation at issue in Privacy First's lawsuit relates to the mass collection and storage of everyone's "historical" ANPR data, also known as "no hits". This should be distinguished from the many years of police practice where license plates of suspects (so-called "hits") can be used for criminal investigations. Dutch media are regularly confused about this as a result of misleading government information, for example on the websites of the Dutch National Police and the Public Prosecution Service. Privacy First regrets such deception and hopes that the media will not be misled by this.
Would you like to support these legal proceedings? Then please consider becoming a donor! Privacy First consists largely of volunteers and is entirely dependent on sponsorship and donations to pursue litigation.
On July 1 and 2, 2019, the Netherlands will be examined in Geneva by the United Nations Human Rights Committee. This UN body is tasked with supervising the compliance of one of the oldest and most important human rights treaties in the world: the International Covenant on Civil and Political Rights (ICCPR). Each country which is a contracting party to the ICCPR is subject to periodical review by the UN Human Rights Committee. At the beginning of next week, the Dutch government must answer before the Committee for various current privacy issues that have been put on the agenda by Privacy First among others.
The previous Dutch session before the UN Human Rights Committee dates from July 2009, when the Dutch minister of Justice Ernst Hirsch Ballin had to answer for the then proposed central storage of fingerprints under the new Dutch Passport Act. This was a cause for considerable criticism of the Dutch government. Now, ten years on, the situation in the Netherlands will be examined once more. Against this background, Privacy First had submitted to the Committee a critical report (pdf) at the end of 2016, and has recently supplemented this with a new report (pdf). In a nutshell, Privacy First has brought the following current issues to the attention of the Committee:
- the limited admissibility of interest groups in class action lawsuits
- the Dutch ban on judicial review of the constitutionality of laws
- Automatic Number Plate Recognition (ANPR)
- border control camera system @MIGO-BORAS
- the Dutch public transport chip card ('OV-chipkaart')
- Electronic Health Record systems
- possible reintroduction of the Telecommunications Data Retention Act
- the new Dutch Intelligence and Security Services Act (‘Tapping Law’)
- Passenger Name Records (PNR)
- the Dutch abolition of consultative referendums
- the Dutch non-recognition of the international prohibition of propaganda for war.
The entire Dutch session before the Committee can be watched live on UN Web TV on Monday afternoon, July 1, and Tuesday morning, July 2. In addition to privacy issues, several Dutch organizations have put numerous other human rights issues on the agenda of the Committee; click HERE for an overview, which also features the previously established List of Issues (including the new Intelligence and Security Services Act, the possible reintroduction of the retention of telecommunications data, camera system @MIGO-BORAS, and medical confidentiality with health insurance companies). The Committee will likely present its ‘Concluding Observations’ within a matter of weeks. Privacy First awaits the outcome of these observations with confidence.
Update July 26, 2019: yesterday afternoon the Committee has published its Concluding Observations on the human rights situation in the Netherlands, which includes critical opinions on two privacy issues that were brought to the attention of the Committee by Privacy First:
The Intelligence and Security Services Act
The Committee is concerned about the Intelligence and Security Act 2017, which provides intelligence and security services with broad surveillance and interception powers, including bulk data collection. It is particularly concerned that the Act does not seem to provide for a clear definition of bulk data collection for investigation related purpose; clear grounds for extending retention periods for information collected; and effective independent safeguards against bulk data hacking. It is also concerned by the limited practical possibilities for complaining, in the absence of a comprehensive notification regime to the Dutch Oversight Board for the Intelligence and Security Services (CTIVD) (art. 17).
The State party should review the Act with a view to bringing its definitions and the powers and limits on their exercise in line with the Covenant and strengthen the independence and effectiveness of CTIVD and the Committee overseeing intelligence efforts and competences that has been established by the Act.
The Market Healthcare Act
The Committee is concerned that the Act to amend the Market Regulation (Healthcare) Act allows health insurance company medical consultants access to individual records in the electronic patient registration without obtaining a prior, informed and specific consent of the insured and that such practice has been carried out by health insurance companies for many years (art. 17).
The State party should require insurance companies to refrain from consulting individual medical records without a consent of the insured and ensure that the Bill requires health insurance companies to obtain a prior and informed consent of the insured to consult their records in the electronic patient registration and provide for an opt-out option for patients that oppose access to their records.
During the session in Geneva the abolition of the referendum and the camera system @MIGO-BORAS were also critically looked at. However, Privacy First regrets that the Committee makes no mention of these and various other current issues in its Concluding Observations. Nevertheless, the report by the Committee shows that the issue of privacy is ever higher on the agenda of the United Nations. Privacy First welcomes this development and will continue in the coming years to encourage the Committee to go down this path. Moreover, Privacy First will ensure that the Netherlands will indeed implement the various recommendations by the Committee.
Writing a New Year’s Column about the state of affairs concerning the protection of everyone’s privacy weighs me down this year. With the exception of a few bright spots, privacy in the Netherlands and the rest of the world has greatly deteriorated. For a while it seemed that the revelations of Edward Snowden in 2013 about secret services tracking everyone’s online behavior would be a rude wake-up call for the world. It was thought that an increasing number of data breaches and a rising number of governments and companies getting hacked, would make people realize that large amounts of data stored centrally is not the solution. The Arab Spring in 2015 would bring about major change through the unprecedented use of (social) media.
The European Union successfully voted against the exchange of data relating to travel movements, paved the way for the current General Data Protection Regulation and seemed to become the shining alternative example under the guidance of Germany, a country known for its vigilance when it comes to privacy. Unfortunately, things turned out differently. Under the Obama administration, Snowden was shunned as a traitor and other whistleblowers were clamped down on harder than ever before. Julian Assange was forced into exile while murdering people with the use of drones and without any form of trial was implemented on a large scale. Extrajudicial killings with collateral damage... While the discussion was about waterboarding... Discussions on such ‘secondary topics’ have by now become commonplace in politics, and so has the framing and blaming of opponents in the polarized public debate (the focus is usually on the person rather than on the argument itself).
Looking back on 2018, Privacy First identifies a great number of areas where the breakdown of privacy is evident:
Government & privacy
In March, an advisory referendum in the Netherlands was held on the introduction of the so-called Tapping law. Immediately after that, the referendum was abrogated. This happened in a time of unprecedented technological possibilities to organize referendums in various ways in a shared democracy. That’s outrageous. The outcome of the referendum was not taken into account and the Tapping law was introduced just like that. Moreover, it turned out that all along, the Dutch Minister of the Interior had withheld an important report on the functioning of the Dutch General Intelligence and Security Service.
Apparently this was nothing to worry about and occurred without any consequences. The recent report by the Dutch State Commission on the (re)introduction of referendums will likely end up in a drawer, not to be looked at again.
Fear of losing one’s role and the political mood of the day are all too important in a culture in which ‘professional politicians’ are afraid to make mistakes, but which is full of incidents nonetheless. One’s job or profession comes first, representing citizens comes second. Invariably, incidents are put under a magnifying glass in order to push through binding legislation with a broad scope. Without the review of compliance with guiding principles such as necessity, purpose limitation, subsidiarity and proportionality. There is an ever wider gap between government and citizens, who are not trusted but are expected to be fully transparent towards that self-same government. A government that time and again appears to be concealing matters from citizens. A government that is required by law to protect and promote privacy, but is itself still the most prominent privacy-violator.
The medical establishment & privacy
In this area things got really out of hand in 2018. Through various coordinated media offensives, the EU and the member states are trying to make us believe in the advantages of relinquishing our right to physical integrity and our humanity. Sharing biometric data with the United States continues unabatedly. We saw the police calling for compulsory DNA databases, compulsory vaccination programs, the use of smart medicines with microchips and the phasing out of alternative therapies. Furthermore, health insurance companies cautiously started to cover genetic testing and increasingly doing away with medical confidentiality, the Organ Donation Act was introduced and microchips implanted in humans (the cyborg as the highest ideal in Silicon Valley propaganda) became ever more popular.
How long before microchips become compulsory for all citizens? All (domestic) animals in the EU have already preceded us. And then there’s the Electronic Health Record, which was first rejected in the Dutch Senate but has reappeared on the minister’s agenda via a detour. Driven by commercial interests, it is being rammed down the throats of general practitioners while alternatives such as Whitebox are not taken seriously. The influence of Big Pharma through lobbying with government bodies and participating in government working groups is particularly acute. They closely cooperate with a few IT companies to realize their ideal of large and centralized networks and systems. It’s their year-end bonus and growth at the expense of our freedom and well-being.
Media & privacy
Naturally, we cannot overlook ‘fake news’. One of the premises for having privacy is being able to form your own opinion and respect and learn from the opinions of others. Furthermore, independent left and right-wing media are essential in a democratic constitutional State. It's their task to monitor the functioning of elected and unelected representatives in politics and in government. Journalists should be able to penetrate into the capillaries of society in order to produce local, national and global news.
Ever since free news gathering came about, it has been a challenge to obtain news based on facts. It’s not always easy to distinguish a press service, PR and propaganda from one another. In times of rapid technological changes and new opportunities, they should be continuously reviewed according to the principles of journalism. That’s nothing new. What is new, however, is that the European Union and our own Minister for the Interior, Kajsa Ollongren, feel they’re doing the right thing by outsourcing censorship to social media companies that are active on a global scale and have proven to be unreliable.
While Facebook and Google have to defend themselves in court for spreading fake news and censoring accounts, the governments hand over the monitoring task to them. The privacy violators and fake news distributors as the guardians of our privacy and journalism. That’s the world upside down. By so doing, this minister and this government undermine the constitutional State and show disdain for intelligent citizens. It’s time for a structural change in our media system, based on new technologies such as blockchain and the founding of a government media office whose task is to fund all media outlets through citizens’ contributions, taking into account the media’s scope and number of members. So that concerns all media, including the so-called alternative media, which should not be censored.
Finance & privacy
The erosion of one’s privacy increasingly manifests itself at a financial level too. The fact of the matter is, that the tax authorities already know in detail what the spending pattern of all companies and citizens looks like. Thanks to the Tapping Law, they can now pass on this information in real-time to the secret services (the General Intelligence and Security Service is watching along). Furthermore, a well-intended initiative such as PSD2 is being introduced in a wholly improvident and privacy-unfriendly way: basic conditions relating to the ownership of bank details (of citizens, account holders) are devoid of substance. Simple features such as selective sharing of banking details, for example according to the type of payment or time period, are not available. What’s more, payment details of third parties who have not given their consent, are sent along.
In the meantime, the ‘cash = criminal’ campaign goes on relentlessly. The right to cash and anonymous payment disappears, despite even the Dutch Central Bank now warning that the role of cash is crucial to our society. Privacy First has raised its opinion on this topic already in 2016 during a public debate. The latest development in this regard is the further linking of information through Big Data and profiling by debt-collecting agencies and public authorities. Excluding citizens from the electronic monetary system as a new form of punishment instead of letting them pay fines is a not so distant prospect. In this regard, a lot of experimentation is going on in China and there have been calls in Europe to move in the same direction, supposedly in order to fight terrorism. In other words, in the future it will become increasingly difficult to raise your voice and organize against abuse of power by governments and companies: from on high it takes only the press of a button and you may no longer be able to withdraw cash, travel or carry out online activities. In which case you have become an electronic outcast, banished from society.
Public domain & privacy
In 2018, privacy in public space has all but improved. Whereas 20 years ago, the Netherlands was deemed too small to require everyone out on the streets to be able to identify themselves, by now, all governments and municipalities in Europe are developing ‘smart city’ concepts. If you ask what the benefits and use of a smart city are (beyond the permanent supervision of citizens), proponents will say something vague about traffic problems and that the 'killer applications' will become visible only once the network of beacons is in place. In other words, there are absolutely no solid figures which would justify the necessity, subsidiarity and proportionality of smart cities. And that’s not even taking basic civil rights such as privacy into consideration.
Just to give a few examples:
- ANPR legislation applies from 1 January 2019 (all travel movements on public roads will be stored in a centralized police database for four weeks)
- A database consisting of all travel movements and stays of European citizens and toll rates as per 2023
- Emergency chips in every vehicle with a two-way communication feature (better known as spyware) as per 1 January 2019
- Cameras and two-way communication in public space, built into the lampposts among other objects as part of smart city projects
- A decision to introduce additional cameras in public transport as per 2019
- The introduction of Smart Cities and the introduction of unlimited beacons (doesn’t it sound so much better than electronic concentration camp posts?)
- Linking together all traffic centers and control rooms (including those of security companies operating on the private market)
- Citizens are permanently monitored by invisible and unknown eyes.
Private domain & privacy
It’s well known that governments and companies are keen to take a peek in our homes, but the extent to which this was being advanced last year, was outside of all proportion. Let’s start with energy companies, who foist compulsory smart meters on citizens. By way of ‘appointment to install a smart meter’, which you didn’t ask for, it’s almost impossible to stay clear of red tape. After several cancellations on my part and phone calls to energy provider Nuon, they simply continued to push forward. I still don’t have a smart meter and it will stay like that.
Once again Silicon Valley featured prominently in the news in 2018. Unelected dictatorial executives who are no less powerful than many a nation state, promote their utopias as trendy and modern among citizens. Self-driving cars take the autonomy and joy away from citizens (the number of accidents is very small considering the millions of cars on the road each day), while even children can tell that a hybrid approach is the only option. The implementation of smart speakers by these social media companies is downright spooky. By bringing smart toys onto the market, toy manufacturers equally respond to the needs that we all seem to have. We can all too readily guess what these developments will mean for our privacy. The manipulation of facts and images as well as distortion, will starkly increase.
Children & privacy
Children and youths represent the future and nothing of the above bodes well for them. Screen addiction is sharply on the rise and as children are being raised amidst propaganda and fake news, much more attention should go out to forming one’s own opinion and taking responsibility. Centralized pupil monitoring systems are introduced indifferently in the education system, information is exchanged with parents and not having interactive whiteboards and Ipads in the classroom has become unthinkable. The first thing children see every single day, is a screen with Google on it... Big Brother.
Dependence on the internet and social media results in impulsive behaviour among children, exposes them to the madness of the day and affects their historical awareness and ability to discern underlying links. The way of thinking at universities is becoming increasingly one-sided and undesirable views are marginalized. The causes of problems are not examined, books are not read though there is certainly no lack of opinions. It’s all about making your voice heard within the limits of self-censorship that’s in force in order to prevent becoming the odd one out in the group. The same pattern can be identified when it comes to forming opinions in politics, where discussing various issues based on facts seems no longer possible. Not to mention that the opinions of citizens are considered irrelevant by our politicians. Good quality education focused on forming opinions and on creating self-reflective minds instead of a robot-way of thinking, is essential for the development of a healthy democracy.
Are there any positive developments?
It's no easy task to identify any positive developments in the field of privacy. The fact is that the introduction of the GDPR and the corresponding option to impose fines has brought privacy more sharply into focus among companies and citizens than the revelations of Snowden have been able to do. The danger of the GDPR, however, is that it narrows down privacy to data protection and administrative red tape.
Another positive development is the growing number of (as of yet small) initiatives whereby companies and governments consider privacy protection as a business or PR opportunity. This is proved by the number of participants in the 2019 Dutch Privacy Awards. Recurring themes are means of anonymous communication (email, search engines, browsers), possible alternatives to social networks (messaging services like WhatsApp, Facebook, Instagram and Twitter) on the basis of subscriptions, blockchain technology and privacy by design projects by large organizations and companies.
Privacy First has teamed up with a few top quality pro bono attorneys who are prepared to represent us in court. However, judges are reluctant to go off the beaten track and come up with progressive rulings in cases such as those concerning number plate parking, average speed checks, Automatic Number Plate Recognition, the Tapping Law, etc. For years, Privacy First has been suffering from a lack of funding. Many of those who sympathize with us, find the topic of privacy a bit eerie. They support us morally but don’t dare to make a donation. After all, you draw attention to yourself when you’re concerned with issues such as privacy. That’s how bad things have become; fear and self-censorship... two bad counsellors! It’s high time for a government that seriously deals with privacy issues.
Constitutional reform should urgently be placed on the agenda
Privacy First is a great proponent of constitutional reform (see our 2017 New Year’s column about Shared Democracy), based on the principles of the democratic constitutional State and the European Convention on Human Rights (ECHR). Our democracy is only 150 years old and should be adapted to this current day and age. This means that the structure of the EU should be changed. Citizens should take on a central and active role. Government policies should focus on technological developments in order to reinforce democracy and formulate a response to the concentration of power of multinational companies.
Privacy First argues that the establishment of a Ministry of Technology has the highest priority in order to be able to stay up to date with the rapid developments in this field and produce adequate policies accordingly. It should live up to the standards of the ECHR and the Dutch Constitution and avoid becoming a victim of the increasing lobbying efforts in this sector. Moreover, it is time for a Minister of IT & Privacy who stays up to date on all developments and acts with sufficient powers and in accordance with the review of a Constitutional Court.
The protection of citizens’ privacy should be facilitated and there should be privacy-friendly alternatives for current services by technology companies. For 2019, Privacy First has a few tips for ordinary citizens:
- Watch out for and stay away from ‘smart’ initiatives on the basis of Big Data and profiling!
- Keep an eye on the ‘cash = criminal’ campaign. Make at least 50% of your payments anonymously in cash.
- Be cautious when communicating through Google, Apple, Facebook and Microsoft. Look for or develop new platforms based on Quantum AI encryption and use alternative browsers (TOR), networks (VPN) and search engines (Startpage).
- Be careful when it comes to medical data and physical integrity. Use your right for there to be no exchange of medical data as long as initiatives such as Whitebox are not used.
- Be aware of your right to stay anonymous, at home and in public space. Campaign against toll payment, microchips in number plates, ANPR and number plate parking.
- Be aware of your legal rights to bring lawsuits, for example against personalized waste disposal passes, camera surveillance, etc.
- Watch out for ‘smart’ meters, speakers, toys and other objects in the house connected to the internet. Purchase only privacy by design solutions with privacy enhanced technology!
The Netherlands and Europe as guiding nations in the field of privacy, with groundbreaking initiatives and solutions for apparent contradictions concerning privacy and security issues - that’s Privacy First's aim. There’s still a long way to go, however, and we’re being blown off course ever more. That’s due in part because a comprehensive vision on our society and a democracy 3.0 is lacking. So we continue to drift rudderless, ending up in the big manipulation machine of large companies one step at a time. We need many more yellow vests before things change. Privacy First would like to contribute to shaping and promoting a comprehensive, positive vision for the future. A future based on the principles that our society was built on and the need for greater freedom, with all the inevitable restrictions this entails. We will have to do it together. Please support Privacy First actively with a generous donation for your own freedom and that of your children in 2019!
To an open and free society! I wish everyone a lot of privacy in 2019 and beyond!
Bas Filippini, Privacy First chairman
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!
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.
On November 2nd 2016, the Dutch House of Representatives will address a controversial legislative proposal that will introduce four week storage of the travel movements of all motorists in the Netherlands. In case both chambers of Dutch Parliament adopt this proposal, Privacy First will try to overturn this in court.
Large scale breach of privacy
It is Privacy First’s constant policy to challenge large scale privacy violations in court and have them declared unlawful. Privacy First successfully did so with the central storage of everyone’s fingerprints under the Dutch Passport Act and the storage of everyone’s communications data under the Dutch Telecommunications Retention Act. A current and similar legislative proposal that lends itself for another major lawsuit is legislative proposal 33542 (in Dutch) of the Dutch Minister of Security and Justice, Ard van der Steur, in relation to Automatic Number Plate Recognition (ANPR). Under this legislative proposal, the number plate codes of all motorists in the Netherlands, i.e. everyone’s travel movements, will be collected through camera surveillance and stored for four weeks in police databases for criminal investigation purposes. As a result, every motorist will become a potential suspect. This is a completely unnecessary, wholly disproportionate and ineffective measure. Therefore the proposal is in breach of the right to privacy and thus unlawful.
The current ANPR legislative proposal was already submitted to the Dutch House of Representatives in February 2013 by the then Minister of Security and Justice, Ivo Opstelten. Before that, in 2010, Opstelten’s predecessor Hirsch Ballin had the intention to submit a similar proposal, albeit with a storage period of 10 days. However, back then the House of Representatives declared this subject to be controversial. Opstelten and Van der Steur have thus now taken things a few steps further. Due to privacy concerns, the parliamentary scrutiny of this proposal was at a standstill for several years, but now seems to be reactivated and even reinforced through a six-fold increase of the proposed retention period, courtesy of the ruling parties VVD and PvdA.
Under current Dutch national law, ANPR data of innocent citizens must be erased within 24 hours. In the eyes of the Dutch Data Protection Authority (Autoriteit Persoonsgegevens, AP), all number plate codes that are not suspect (so-called ‘no-hits’) are to be removed from relevant databases immediately. Van der Steur’s plan to also store the number plate codes of unsuspected citizens for four weeks directly flies in the face of this. VVD and PvdA are even willing to increase this retention period to six months. The inevitable consequence, a haystack of data, would constitute a blatant violation of the right to privacy of every motorist. Any possible judicial oversight of the use of these data would do nothing to alter this.
UN Human Rights Council
In recent years, Privacy First has repeatedly expressed this position to both the House of Representatives (standing committee on Security and Justice) as well as to relevant MPs personally. Privacy First has also made its stance clear in personal meetings with Minister Opstelten (July 2012) and Minister Van der Steur (July 2014, at that time still a VVD MP). Moreover, Privacy First has recently raised this issue with the United Nations. In May 2017, the Dutch government can be held accountable for this at the UN Human Rights Council in Geneva.
In case both the House of Representatives and the Dutch Senate will adopt the ANPR legislative proposal in its current form, Privacy First (in a broad coalition together with other civil organizations) will immediately summon the Dutch government in order to render the law inoperative on account of violation of the right to privacy. If necessary, Privacy First and co-plaintiffs will litigate all the way up to the European Court of Human Rights in Strasbourg. Considering the European and Dutch case law on the subject, Privacy First rates its chances of legal success very high.
Update 20 December 2018: today the Dutch government has announced that the ANPR Act will enter into force on 1 January 2019. The summary proceedings of Privacy First against the ANPR Act will soon take place at the District Court of The Hague.
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!
Column by Bas Filippini,
Privacy First chairman
The Dutch police is currently running a pilot with Radio Frequency Identification (RFID)-chips in license plates. According to an internal report, fraud with license plates is alleged to be a big problem. A chip which is compulsory for every motorist and which can be read from a distance through a 'read-out portal' at all times on public roads, would supposedly be THE solution. However, Privacy First perceives the setting up of a national control system to track all movements in public space of all 17 million Dutch citizens as a great danger to society. Privacy First finds a compulsory spychip disproportional and unfit for a decent democracy under the rule of law.
A comprehensive electronic control system
Enquiries by Privacy First reveal that the license plate chip is part of a much larger plan to equip all roads in the Netherlands with so-called 'portals' with measurement equipment. These portals would record all cars 24 hours a day and thus the movements of all 17 million citizens in public space. The Dutch Bicycle and Automobile Industry (RAI) Association strongly recommends the use of such a chip in a recently leaked report. Moreover, new regulations, which make chips inside cars compulsory alongside license plate chips, are being prepared by European Parliament. According to the basic concept, over 60 details would be recorded and stored in the European database EUCARIS. The chip should enable immobilizers as well as a digital license plate database, online license plate requests, a European general periodical car inspection and could eventually grow into a European system for travel and residence rights and taxes.
For the time being, the project is traded as a solution for identity fraud and license plate related crimes in order to get citizens 'aboard'. However, in Privacy First's eyes the system is yet another attempt to be able to record citizens in public space, either through the public transport chip card or chips in license plates and/or cars. A license plate chip for all citizens as if it were an ankle bracelet is a dogged principle in the current control oriented way of thinking by the Dutch government and now the European Parliament, too. Which role do Dutch lobbyists outside Dutch parliament play in order to introduce these chips from Dutch manufacturer NXP in all European license plates on the basis of a Europe measure, or, in other words, by way of a political U-turn? Privacy First thinks it's high time for some serious journalistic research into this.
Current license plate issues: facts or suggestions?
Upon enquiry into the real problem, none of the authorities have been able to provide any clarity about the presupposed 40,000 cases of fraud with license plates. Even though it's important for citizens to know if there's a problem, and how substantial this problem is, the figure cannot be confirmed. Therefore, the question is raised whether it's legally justified to introduce such a system. Even in case of an estimated 40,000 license plates (a mere 0.5 per mil of the total) it's dubious whether the privacy of the entire society should be sacrificed. It's also altogether unclear how high the costs of such a system would be, and how high the gains in respect of the current alleged costs of identity fraud and license plate related crimes.
Are there no alternative solutions to 'the problem'? From a recent letter from the Dutch minister of Security and Justice, Ard van der Steur, it emerges that fraud with license plates occurs less frequently already due to measures such as the controlled online management and issuing and returning of license plates, requirements for recognized manufacturers and laminators (laminate code) as well as the obligation to report stolen or lost blank plates or license plates that have not yet been issued. Moreover, in 2000, the system of duplicate codes on license plates was introduced. Furthermore, faulty license plates are entered in the database for Automatic Number Plate Recognition (ANPR) control.
Whether it concerns black boxes, chips for theft prevention in (as of yet only more expensive) cars, eCall for crash analyses (also manufactured by NXP), dashcams, speed checks or the network of ANPR cameras, time and again Privacy First sees a pattern whereby the Dutch government tries to turn the complete recording of travel behaviour of citizens into reality. Now we're about to witness a spychip in every license plate and in every car, through undemocratic EU law – the ICT industry lobbied a number of MEPs in order to circumvent national parliaments – and the central database EUCARIS.
Reasons to opt for free choice and very selective use of a passive chip
Privacy First sees many reasons to not give a control infrastructure the go-ahead:
• A lack of necessity due to the absence of concrete figures regarding the 'alleged problem' and the availability of alternative solution-paths and measures, some of which have already been introduced.
• A complete lack of a cost-benefit analysis of a control infrastructure. The only one benefitting from the system in the short term is the chip manufacturer: in the future, chip manufacturer NXP will spy on you alongside the NSA! Under American surveillance legislation that is.
• The alleged problem is not commensurate with the measure, which is entirely disproportional and in breach of Article 8 ECHR. In the fight against identity fraud with license plates, a passive registration chip suffices and citizens should be able to choose freely whether or not they want to have a RFID license plate.
• The system will enable real-time identification, monitoring and recording of all citizens, including lawyers, journalists, politicians, activists – a very serious privacy infringement
• A central infrastructure and central data storage are particularly susceptible to fraud. If criminals get access to databases containing all the travel and residency data of cars and people in the Netherlands and the rest of Europe, all floodgates will be opened.
• There is a risk of function creep. The tax authorities, police and other law enforcement agencies already have real-time access to systems that have been intended for entirely different purposes, think of systems related to car parks and speed checks.
• Eventually a system like that could be deployed to burden citizens even more in various ways, such as road pricing and other travel & residency taxes and sanction systems, something that is perhaps the underlying thought of this draconian measure. Meanwhile ANPR cameras are used to fine drivers of old diesel cars in inner cities. What's next?
• Permanently recording citizens in public space will lead to self-censorship and an 'apology society' in which citizens have to have an alibi all time to explain what they were doing in a given location and why they were there. Citizens are already pestered by the police and authorities as a result of their travel behaviour – complaints about this reach Privacy First ever more often.
• Finally, an infrastructure like this affects our constitutional democracy by inverting the legal principle that there should be a reasonable suspicion of a criminal offence to be tracked: every citizen would be considered a potential suspect and would be continuously spied on.
An over-zealous control oriented way of thinking by a distrustful government
The policies of the Dutch government are tenaciously moving in one direction only. New technological gadgets are mandatorily deployed to record all citizens and central systems are subsequently linked together. After that, a flawed law and its implementation are being proposed and finally there are talks with privacy organizations and guileless citizens, who are left behind in an electronic prison. Nowadays Big Data, data mining and profiling are the magic words in all government departments. It all concerns 'OPD' (other people's data) anyway, very convenient indeed. In this case we're talking about equipping each car with three chips and implementing and maintaining a comprehensive ICT network on all roads, a market potentially worth billions of euros. And in the relationship that is then being formed between the public and the government, the latter is a distrustful partner that wants to know who the former is communicating with and what its travel movements look like. It also wants to dispose of systems with which errors can be checked, but in the worst case, it deals carelessly with all the data it collects. Such a relation, based on mistrust, certainly isn't sustainable.
The Netherlands, a global pioneer in the field of privacy
Time and again people forget: it's the legitimate task of the government to protect and promote the privacy of its citizens! Privacy First wants the Netherlands to become a global pioneer in the field of privacy with advanced technologies, based on the principles of our constitutional democracy and independent of the misconceptions of the day and our incident-driven political system. After all, this is about a fundamental turnaround in the relationship with the public, something Privacy First is opposed to. We therefore challenge politics, industry and science to turn the Netherlands into THE nation that is at the vanguard of privacy matters while maintaining security, and not the other way around!
"Holland sammelt unbändig Daten. Neue digitale Produkte dienen der totalen Überwachung. Und sind eine große Gefahr für die Gesellschaft.
Hinter den Dünen, ein paar hundert Meter vom Strand entfernt, liegt in Noordwijk der futuristische Bau von Decos. Das niederländische Software-Unternehmen hat sich eine neue Zentrale geleistet – einem eingeschlagenen Meteoriten ist sie nachempfunden, es könnte auch ein Raumschiff sein. Hier setzen IT-Spezialisten die digitale Zukunft durch: den völlig papierlosen Betrieb. Mitarbeiter kommunizieren ausschließlich elektronisch, und wer dem Unternehmen einen Brief schreibt, bekommt ihn zurück mit der Aufforderung, ihn nochmals zu senden, aber bitte als E-Mail.
Auch seinen Kunden bietet Decos Digitalisierung pur: Das Unternehmen liefert ihnen Software, um alle Dokumente elektronisch zu speichern – aber auch Produkte zur totalen Überwachung von Mitarbeitern. Sein „Cartracker" verfolgt jede Dienstreise, alle fünf Sekunden wird das Fahrzeug frisch verortet. „Hiermit haben Sie immer eine aktuelle Übersicht, wo sich Ihre Autos und Mitarbeiter befinden", wirbt Decos. Mehr noch: Der Fahrstil wird ständig überwacht und sogar benotet: „Aufgrund der Höchstgeschwindigkeit, des Bremsverhaltens und der Beschleunigung berechnet ,Decos Cartracker' eine individuelle Zensur für das Fahrverhalten jedes Fahrers."
Digitalisierung wird zur Norm
Nun mag es bei Geldtransportern noch sinnig sein, ihnen aus Sicherheitsgründen aus der Ferne zu folgen. In allen anderen Fällen gilt: Wohl dem, der einen weniger progressiven Arbeitgeber hat – einen, der vertraut, statt nonstop zu überwachen. Aber die Digitalisierung nimmt zu, sie wird zur Norm – und das nicht nur im Beruf, auch im öffentlichen Raum. Und die Niederlande sind hier in mancherlei Hinsicht schon weiter fortgeschritten als Deutschland.
Im Juli schaffte das Land endgültig die Fahrkarte aus Papier im öffentlichen Verkehr ab – für die zuvor schon schrittweise eingeführte „ÖV-Chipkarte", die den Preis in der Regel je Kilometer berechnet. Für den Kunden bedeutet sie außer 7,50 Euro Anschaffungskosten vor allem Umstände: für das Aufladen, für das Ein- und Auschecken bei jeder Fahrt. Wer das versäumt oder an einen kaputten Kartenleser gerät, ist schnell ein Sümmchen los; man muss dann auf Kulanz hoffen und per Online-Antrag versuchen, es erstattet zu bekommen.
Anonymität hat ihren Preis
Was aber noch schwerer wiegt: Die Chipkarte speichert so die Fahrstrecke – und da die Standardversion alle wesentlichen Nutzerdaten enthält (inklusive Kontonummer), kann sie das Reiseverhalten des Bürgers erfassen. Wer anonym mit einem Einmal-Ticket fahren will, muss Aufschlag zahlen – nicht viel, einen Euro momentan, aber immerhin; und vielleicht ist das ja auch nur der Anfang. Viel gravierender noch: Wer eine Studenten- oder Rentnerkarte braucht, muss zwingend die personengebundene Version mit den Daten wählen. Natürlich versichern die Betreiber, alles vertraulich zu behandeln. Aber wer sich darauf verlässt, ist naiv. Wo immer auf der Welt digital gespeichert wird: Die Vorfälle sind Legion, in denen Patienten-, Sozial- oder andere Daten missbraucht wurden – oder massenweise verfügbar, sei es versehentlich, sei es durch Hacker.
Natürlich gibt es in Deutschland den ähnlichen Fall: wenn jemand mit seiner Bahncard Punkte sammelt. Aber das macht er dann freiwillig. Und es ist wichtig aufzupassen, dass die öffentlichen Verkehrsträger hierzulande nicht dem Beispiel aus dem Ausland folgen. Generell ist Obacht schon geboten, wann immer die Preisgabe von Daten belohnt wird – wie bei dem Vorstoß eines deutschen Autoversicherers, Rabatt zu gewähren, wenn der Autohalter einen digitalen Fahrtenschreiber (Blackbox) installiert. Denn das läuft schnell darauf hinaus, dass er umgekehrt für das Recht auf Anonymität einen Malus bekommt.
Erstaunlich ist, dass ein Land wie die Niederlande so unbändig Daten sammelt – sieht es sich doch gerne als „gidsland": als internationales Vorbild, wenn es um Politik, Verwaltung, gesellschaftliche Werte und Normen geht. „Von allen Menschenrechten steht das Recht auf Privatsphäre in den Niederlanden am meisten unter Druck", befindet die Stiftung Privacy First.
Mal führen die Behörden Sicherheit als Argument für die Digitalisierung an, mal Effizienz. Nach Amsterdam führt jetzt auch Rotterdam stadtweit das „Kennzeichenparken" ein: Wer das Auto abstellt, muss am Automaten die Buchstaben und Ziffern des Nummernschilds eingeben. Mit Bargeld darf er auch nicht mehr zahlen, nur mit Karte oder per Mobiltelefon – auch dies ein nationaler Trend. Wieder eine digitale Spur hinterlassen, wieder ein Stück Anonymität dahin. (...) [A]ls Nächstes eine Pflicht für Smart Meters in Wohnungen: Ablesegeräte, die viel mehr erfassen können als nur den Energieverbrauch in den Wohnungen. Die Industrie lobbyiere schon kräftig dafür. Nicht zu reden von den zahllosen Überwachungskameras in Städten, der massenweisen Kennzeichenerfassung auf Autobahnen und Polizeidrohnen mit Kamera. Die Bedenken der Datenschützer werden gerne abgetan: Wer nichts zu verbergen hat, muss doch nichts befürchten? Aber das ist die falsche Haltung, sie kehrt ein grundlegendes Recht um: das Recht, sich unbewacht zu bewegen."
Source: http://www.faz.net/aktuell/wirtschaft/wirtschaftspolitik/digitalisierung-big-brother-in-holland-13092653.html, 12 August 2014.
At the end of this summer our colleagues from Bits of Freedom will once again be organizing the annual Big Brother Awards. Below are our nominations for the biggest Dutch privacy violations of the past year:
- Automatic Number Plate Recognition plans from Minister Opstelten
If it’s up to the Dutch Minister of Security and Justice, Ivo Opstelten, the travels of every motorist in the Netherlands will soon be stored in a police database for four weeks through automatic number plate recognition (ANPR) for criminal investigation and prosecution purposes. This means that, in the view of Mr. Opstelten, every motorist is a potential criminal. Privacy First deems this proposal absolutely disproportional and therefore in breach with the right to privacy as stipulated under Article 8 of the European Convention on Human Rights. In case Dutch Parliament accepts this legislative proposal, Privacy First will summon the
on account of unlawful legislation in violation with the right to privacy; see http://www.privacyfirst.eu/focus-areas/cctv/item/580-every-motorist-becomes-potential-suspect.html. Dutch State
- Proposal for hacking scheme from Minister Opstelten
A second miserable plan from Minister Ivo Opstelten is to authorize the Dutch police force to hack into your computer and to oblige citizens to decrypt their encrypted files for the police. In the view of Privacy First this plan, too, is entirely in breach with the right to privacy, since it’s unnecessary and disproportional. Moreover, the proposal contravenes with the ban on self-incrimination (nemo tenetur). The proposal will lay the basis for future abuse of power and forms a typical building block for a police State instead of a democratic constitutional State. For our main objections, see http://www.privacyfirst.eu/focus-areas/law-and-politics/item/599-privacy-first-objections-against-opstelten-hacking-scheme.html.
- License plate parking
As of late, in an ever greater number of Dutch cities (among which
) license plate parking is becoming compulsory. Privacy First stands up for the classical right of citizens to travel freely and anonymously in their own country. The right to park anonymously is a part of this. License plate parking clearly disregards these rights. Moreover, it leads to function creep in breach with the right to privacy. The prime example here is the already proven abuse of parking information of lease drivers by the Dutch tax authorities; see http://www.nrc.nl/nieuws/2013/07/29/privacywaakhond-het-servicehuis-parkeren-overtreedt-de-wet/ (in Dutch). Amsterdam
- Highway section controls
Section speed checks on Dutch highways make that the journeys of motorists are continuously being monitored. This forms a massive infringement of the right to privacy. Such an infringement requires a specific legal basis with guarantees against abuse. Moreover, function creep is just around the corner; this already becomes obvious from the current plans of Dutch Minister Opstelten to soon use all highway speed cameras for automatic number plate recognition (ANPR) for investigation and prosecution purposes of a whole range of criminal offences as well as the collection of outstanding fines, tax debts, etc.
Besides the ‘usual’ cameras in neighbourhoods, shops, stations, above highways etc., citizens are increasingly – and almost unnoticed – being spied upon by flying cameras: so-called drones. The government does this (mainly the police) and so are private parties, yet without any sufficient legislation. Because of this the privacy risks and the likelihood of an accident are enormous. Privacy First therefore pleas for a moratorium on the use of drones until proper national legislation is put in place. Furthermore, drones should only be allowed to be used by the government in exceptional cases, for instance in disaster situations or for the investigation of suspects of very serious crimes, and only in case no other adequate means can be deployed. For private parties a license system is to be introduced with strict supervision and enforcement. Moreover, every drone is to be equipped with a transponder that is publically cognizable.
- Police Taser weapons
In September 2012 it became known that Dutch Minister Opstelten was planning to equip the entire Dutch police force with Taser weapons. In the view of Privacy First, the use of Taser weapons can easily lead to violations of the international ban on torture and the related right to physical integrity (which is part of the right to privacy). Taser weapons lower the threshold for police violence and hardly leave behind any external scars. At the same time they can inflict serious physical damage and mental harm. In conjunction with the current lack of firearms training for Dutch police officers, this produces serious risks for the Dutch population. In May 2013 the Dutch government had to justify itself over Opstelten’s plans in front of the UN Committee against Torture in Geneva; see http://www.privacyfirst.eu/focus-areas/law-and-politics/item/595-dutch-taser-weapons-on-agenda-of-un-committee-against-torture.html. Nevertheless, for the moment Opstelten’s intentions seem to be unchanged...
- Electronic Health Record
In April 2011 the introduction of a Dutch national Electronic Health Record (Elektronisch Patiëntendossier, EPD) was unanimously binned by the Dutch Senate due to privacy objections and security risks. However, the national introduction of almost the same EPD was subsequently worked towards along a private route and this included the exchange of medical data through a National Switch Point (Landelijk Schakelpunt, LSP). This will by definition lead to 'function creep by design' instead of privacy by design. The digital ‘regional walls’ in and around the LSP will easily be circumvented or removed. Therefore the entire system can take on its old central form again at any given moment in the future, with all the privacy and security risks this entails. Furthermore, the current layout is characterized by generic instead of specific permission of the patient to share medical data with healthcare providers (and future third parties). This constitutes an imminent danger for the medical privacy of citizens as well as the professional confidentiality of medical specialists.