A group of civil society organizations is bringing a case against the Dutch government because of System Risk Indication, better known by the abbreviation SyRI. According to the plaintiffs, this risk profiling system is a black box that should be stopped as it forms a risk to the democratic rule of law.
The coalition of plaintiffs consists of the Netherlands Committee of Jurists for Human Rights (NJCM), the Dutch Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten), Privacy First, the KDVP Foundation (privacy in mental healthcare) and the National Clients Council (LCR). Two well-known authors, Tommy Wieringa and Maxim Februari, have in their individual capacities joined the case as plaintiffs. As ‘ambassadors’ to this lawsuit, they have fiercely criticized SyRI on multiple occasions.
The proceedings are carried out by Deikwijs Attorneys under the guidance of the Public Interest Litigation Project (PILP) of the NJCM.
Trawl net actions on the basis of secret algorithms targeting innocent citizens
SyRI links together on a large scale personal data of innocent citizens from databases of public authorities and companies. With the use of secret algorithms, citizens are subsequently subjected to a risk analysis. When there is an increased risk of breaking one of the many laws that SyRI covers, individuals are included in the Risk Reports Register, which is accessible to many government agencies.
SyRI is a black box that poses a major threat to the democratic rule of law. Citizens who are being examined through SyRI without any justification, have absolutely no idea which of their data are being used for analyses, what kind of analyses are being carried out and what actually determines whether or not they are a ‘risk’. Because SyRI works surreptitiously, citizens are not in a position to refute any incorrect flagging that may concern them.
According to the coalition, SyRI is in breach of various fundamental rights while it simultaneously undermines the relationship of trust between citizens and those in power. Citizens are suspect from the very start and all of the information that they share with public authorities, may secretly be used against them without imputation or concrete ground.
Ministry refuses to operate in a transparent manner
Despite fundamental objections from the Dutch Council of State (Raad van State) and the Dutch Data Protection Authority about the lawfulness of the system, at the end of 2014 the legislation for SyRI was rubber-stamped by the Dutch Senate and the House of Representatives. However, SyRI has been in use ever since 2008 already. Since then, dozens of investigations have been carried out and this included examining entire neighborhoods in several Dutch cities. Once the system was specified in law, it has been applied in Eindhoven and Capelle aan den IJssel among other places. It was recently announced that SyRI will be used in the Rotterdam neighborhoods of Bloemhof en Hillesluis and in the Haarlem neighborhood of Schalkwijk.
A FOIA request submitted by the coalition has resulted in barely any information concerning the dozens of SyRI investigations that have been carried out prior to and after the system had been laid down in law in 2014. The Dutch Ministry of Social Affairs is unwilling to provide insight into its practices arguing that, by disclosing the data and risk models that are used in SyRI, cunning citizens would become aware what to look out for when they commit fraud. The claimants, in their turn, assert that this is not in line with the obligation to inform and the right to a fair trial.
In the context of this lawsuit, a public information campaign called ‘Bij Voorbaat Verdacht’ (‘Suspect From The Very Start’) has been launched. On the (Dutch) campaign website you can find updates about the legal proceedings as well as a simplified summary of the subpoena. The complete subpoena (in Dutch) can be found on the website of Deikwijs Attorneys (pdf). Click HERE for the English version on the website of PILP (pdf).
Update 16 October 2018: the District Court of The Hague has allowed the Dutch Federation of Trade Unions (FNV) as co-plaintiff in the lawsuit.
Below, in alphabetical order, are Privacy First’s main objections against the new Dutch Intelligence and Security Services Act (Wiv2017, or ‘Tapping law’):
A. Authority to hack
Under the new law, the Dutch intelligence services will be able to hack a target through innocent third parties. By hacking a third party (for example an aunt, a sister, a friend, a husband, a grandfather, a colleague, a neighbour, a public authority, a company, etc.), information can be obtained about the target. In other words, any devices of innocent citizens may be hacked by the intelligence services. Citizens will never be notified about this, as there is no duty to inform.
C. Chilling effect
The new law may result in people behaving differently (either consciously or not) than they would do in a free environment. This can have a negative effect on the exercise of their fundamental rights other than the right to privacy, for instance on the right to freedom of expression and the right to freedom of association, assembly and demonstration.
Under both the current as well as the new law, Dutch secret agents are authorized to commit criminal offences. However, up until now, the exact scope of this power has been unknown. Under the current law, this power could be further regulated through a (never introduced) General Administrative Order. A number of years ago, the Dessens Commission recommended introducing such a General Administrative Order after all. In the new Tapping law however, the foundation for this General Administrative Order has been scrapped, leaving behind a legal vacuum.
The new law enables automatic access to databases in both the entire private and public sector. This allows intelligence services direct access to various sensitive databases of companies, public authorities and other organizations, either through informants and agents (infiltrators), or through secret agreements.
The power to conduct ‘research-oriented interception’, popularly known as the ‘trawl net method’ or the ‘the dragnet-surveillance power’, allows intelligence and security agencies (secret services) to tap the internet traffic of large groups of people simultaneously. They may tap a particular municipality, neighbourhood, local community or street, in case one of their targets happens to live there. This entails monitoring the communications of innocent citizens by means of a digital dragnet. Privacy First believes that the data of innocent citizens do not belong in the hands of intelligence services. Apart from that, the collection of huge amounts of data makes the intelligence services less effective.
Under the new law, encrypted data in the possession of companies, public authorities and individuals (for example communications data) must be decrypted on the request of secret services. Refusing to comply with a decryption order will be punished with a maximum of two years’ imprisonment.
Under the Tapping law, the intelligence and security services will have their own DNA database. They may collect DNA of targets and non-targets (innocent citizens). In order to collect DNA, they are allowed to grant themselves access to confined places, such as offices or residences. Dutch magazine Groene Amsterdammer has recently written an extensive article about the DNA Collection Service.
E. European Convention on Human Rights (ECHR)
The right to privacy is a human right: this right is protected by article 8 of the ECHR. Privacy First is of the opinion that the new Tapping law violates the right to privacy. We are ready to start interim injunction proceedings (lawsuit) against the Dutch government in case the Tapping law comes into force. This would enable a judge to scrutinize the new Act and possibly render it (partly) inoperative on account of violation of article 8 ECHR.
Exchange of data
The data of innocent citizens and journalists that are collected through the use of internet dragnet surveillance can be shared with foreign intelligence agencies before first being evaluated by the Dutch agencies.
F. Fake news from the Dutch government
According to the Dutch Minister of the Interior Kajsa Ollongren, it’s not necessary that the government puts neutral information about the Tapping law referendum on its website rijksoverheid.nl. This means that the Dutch government does not provide objective information to voters.
The law gives too much power to intelligence and security services and too little privacy guarantees to citizens. After the Tapping law referendum, the law will have to go back to the legal drawing board, where proper privacy guarantees should be added and the exercise of powers be reviewed.
H. Human rights
Privacy is a human right. The right to protection of one’s private life applies to everyone and is being guaranteed by numerous international and European treaties. The Tapping law will massively violate this right, considering the fact that it allows for the collection, storage and international exchange of data of large groups of innocent citizens.
Hyping the terror threat
Proponents of the Tapping law have often put forward the argument that it will prevent terror attacks, as was shown by Dutch television show Zondag met Lubach. However, other countries have already shown that working in a focused, targeted way is much more effective. Opponents of the Tapping law agree that the current law needs to be updated, but they demand that the law be modified and improved in crucial aspects.
I. I’ve got nothing to hide
Everyone is entitled to having a private life. That’s why the data of innocent citizens do not belong to intelligence and security agencies. It’s important for these data, which include medical information, personal conversations, private emails, work-related emails, news stories, hobbies, interests and internet search results, to be protected properly. You may have ‘nothing’ to hide, but other citizens, like medical professionals, attorneys, activists, whistle-blowers and journalists certainly do.
Interception of cable-bound data
It is falsely being argued that the intelligence and security services are currently allowed to intercept data over the ether (non cable-bound) only and not any cable-bound data. Under current legislation, they may intercept cable-bound data when the target concerns, for example, a particular individual. Under the new law, secret services will be authorized to intercept cable-bound data on a large scale and without specific targets (the dragnet method).
Internet of Things
An ever increasing number of devices are connected to the internet. All these devices can be tapped and hacked under the new Tapping law. Think of a car, a camera, microphone, printer and perhaps even a pacemaker. After all, the Tapping law doesn’t exclude this possibility.
The communications of journalists may be intercepted under the new Tapping law by means of dragnet surveillance, among other ways. Secret services may acquire knowledge about this confidential information. This constitutes a threat to the freedom of the press and the journalistic right to non-disclosure of sources. Only retrospectively will secret services delete information that turns out not to be useful for any investigation.
In most cases, a judicial verification of the exercise of powers is lacking. As explained under ‘Review Board for the Use of Powers’(TIB), the new Review Board lacks the investigatory powers for effective and independent monitoring.
In his tv programme Zondag met Lubach, comedian and television presenter Arjen Lubach has looked into the Tapping law three times, explaining why it’s good to be critical about it. You can watch the videos (in Dutch) here: Tapping law 1, Tapping law 2 and Tapping law 3.
M. Medical confidentiality
Under the new law, the medical confidentiality of patients and the medical secrecy of doctors cannot be guaranteed: secret services can make a request to anyone, including doctors and hospitals, to hand over relevant data and to grant access to their data system (Electronic Health Record). They can also hack into such systems. This can lead to the evasion of health care among patients, which could endanger national health.
N. Notification obligation
Under the new law, the notification obligation is insufficient. Five years after exercising a certain power, the person concerned should, in principle, be notified about this. This, however, applies to only a few of the newly introduced powers. Privacy First thinks the notification obligation should apply to the exercise of all powers.
O. Other countries
Under the new Tapping law, data that have been collected may be shared with other countries without being evaluated first. This means that Dutch intelligence services can share unseen and unselected data (of innocent citizens) with foreign secret services. Once the data have been shared, Dutch intelligence services won’t be able to monitor the use of these data anymore.
P. Presumption of innocence
With the introduction of the new law, the presumption of innocence gets inverted. The dragnet-surveillance makes every single citizen a potential suspect, without any concrete ground to monitor someone in particular. Moreover, large-scale data collection increases the chance of false positives.
Q. Quest for data
The Dutch government has developed an enormous thirst for data. Whereas neighbouring countries go back to a target-centric approach, the Netherlands embraces Big Data. This leads to an ever growing haystack in which finding the needle will become increasingly difficult. More data is no equivalent to more security.
R. Review Board for the Use of Powers (TIB)
Independent supervision in all phases of the exercise of powers by secret services (before, during and afterwards) is insufficiently guaranteed. Since intelligence services operate secretly, citizens against whom such powers are exercised cannot object to this themselves. That’s why the exercise of powers is to be reviewed independently. The new Review Board for the Use of Powers (Toetsingscommissie Inzet Bevoegdheden) reviews beforehand whether the minister has rightfully given approval for the exercise of a relatively far-reaching (‘special’) power under the new law. This review is substantiated by less guarantees than the review by a judge. Furthermore, the Review Board doesn’t have any investigative powers of its own and is completely dependent on the information it’s provided with by others. Various authorities, such as the Dutch Data Protection Authority, have warned that the Review Board shouldn’t become a 'rubber stamping machine'.
Review Committee on the Intelligence and Security Services (CTIVD)
The judgments of the Review Committee on the Intelligence and Security Services, which retrospectively reviews whether or not powers have been applied lawfully, are not binding. The Minister of the Interior may not take the findings and recommendations into account and continue to unlawfully use powers.
Privacy and security are unduly placed on opposite sides of the balance. In a free and democratic society, privacy and security go hand in hand. It’s possible to draft an Intelligence and Security Services Act that has good privacy safeguards under which information of innocent citizens doesn't end up in the hands of intelligence agencies.
Unevaluated data that have been collected through ‘dragnet surveillance, may be stored for three years. These data may also be shared with other countries, even without first being evaluated. Data that the intelligence and security agencies deem relevant may be kept for as long as they are regarded as such.
Z. Zero days
The intelligence and security services have the power to make use of unknown software vulnerabilities, so called zero-days. Such vulnerabilities are known to them, but not to the creator or manufacturer of the software. They don’t have to notify the manufacturer about it. This allows malicious parties to exploit vulnerabilities, even over longer time periods. It also creates a black market, where such vulnerabilities and data breaches are traded.
This list is not exhaustive and can be supplemented at all times.
Since 2013, the Dutch Association of General Practitioners has, in an essential civil case, been litigating against the private successor of the Dutch Electronic Health Record (Elektronisch Patiëntendossier, EPD): the National Switch Point (Landelijk Schakelpunt, LSP). At the end of last week, the Dutch Supreme Court decided that, for the time being, the LSP is not in violation of current privacy law. However, the Supreme Court has laid down in its judgment that the LSP will soon have to comply with the legislative requirement of privacy-by-design. This constitutes an important precedent and raises the bar with a view to the future.
Private relaunch of EPD: National Switch Point
In April 2011, the Dutch Senate unanimously rejected the EPD, primarily on account of privacy objections. However, almost directly afterwards, various market participants (among which health insurance companies) made sure there was a relaunch of the same EPD in private form: the LSP, intended for the large-scale, central exchange of medical data. Since then, the LSP has been introduced nationally and many practitioners have aligned themselves with it, oftentimes under pressure of health insurers. Millions of people in the Netherlands have given their ‘consent’ to the exchange of their medical records via the LSP. However, this ‘consent’ is so broad and general, it’s virtually impossible to deem it lawful. This was one of the main objections the court case of the Association of General Practitioners against the LSP revolved around. Other objections against the LSP are related to the fact that its architecture is inherently insecure and in breach of privacy. Through the LSP, every connected medical record is accessible for thousands of health care providers. This is in violation of the right to privacy of patients and the medical confidentiality of treating physicians. What’s more, there is no privacy-by-design, for example through end-to-end encryption. The LSP is basically as leaky as a sieve, which means that it’s ideal for function creep and possible abuse by malicious actors.
Specific Consent Campaign
Over the last couple of years, Privacy First has repeatedly raised the alarm about this in the media. We have brought the issue to the attention even of the United Nations Human Rights Council. In April 2014, a large scale Internet campaign was launched on the initiative of Privacy First and the Dutch Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten) in order to retain and enhance the right to medical confidentiality: www.SpecifiekeToestemming.nl. Ever since, this campaign is being supported by numerous civil organizations, healthcare providers and scholars. The essence of the campaign is that specific consent should (again) become the leading principle when it comes to the exchange of medical data. In case of specific consent, prior to sharing medical data, clients have to be able to decide whether or not, and if so, which data to share with which healthcare providers and for which purposes. This minimizes risks and enables patients to control the exchange of their medical data. This is in contrast to the generic consent that applies to the LSP. In the case of generic consent, it is unforeseeable who can access, use and exchange someone’s medical data. In this respect, generic consent is in contravention of two classic privacy principles: the purpose limitation principle and the right to free, prior and fully informed consent for the processing of personal data.
Privacy by design
Courtesy also of the pressure exerted by our campaign SpecifiekeToestemming.nl, the Dutch legislative proposal Clients’ Rights in relation to the processing of data in healthcare (legislative proposal 33509), was strenghtened by the House of Representatives in 2014 and was adopted by the Senate in 2016 as a result of two crucial motions: 1) the motion Bredenoord (D66) about the further elaboration of data-protection-by-design as the starting point for the electronic processing of medical data and 2) the motion Teunissen (Party for the Animals) related to keeping medical records accessible on a decentral (instead of a central) level. Under the new law, specific (‘specified’) consent is obligatory. This should now be implemented in all existing and future systems for the exchange of medical data, including the LSP. Moreover, privacy-by-design will become an inexorable legal duty under the new European General Protection Data Regulation (GDPR), that is to say, privacy and data protection should be incorporated in all relevant hardware and software from the very first design. In this context, there have been several developments on the Dutch market in recent years, all of which indicate that both specific consent as well as privacy-by-design are indeed becoming standards in new systems. A prime example of this in a medical context is Whitebox Systems, which won a Dutch National Privacy Innovation Award in 2015 already.
Court case of Association of General Practitioners
Since March 2013, the Dutch Association of General Practitioners (Vereniging Praktijkhoudende Huisartsen, VPH) has been litigating in a large-scale civil case against the private administrator of the LSP: the Association of Healthcare Providers for Healthcare Communication (Vereniging van zorgaanbieders voor zorgcommunicatie, VZVZ). Following unsatisfactory rulings by the district court of Utrecht and the Arnhem Court of Appeal, VPH appealed before the Dutch Supreme Court at the end of 2016. Since then, this case has, on the recommendation of Privacy First, received pro bono support from law firm Houthoff Buruma. As amicus curiae, Privacy First and the Platform for the Protection of Civil Rights filed a letter (PDF) with the Supreme Court in support of the general practitioners and in line with our joint campaign SpecifiekeToestemming.nl. In her conclusion, the Advocate general of the Supreme Court referred extensively to the amicus curiae letter. On 1 December 2016, the Supreme Court finally came up with its ruling. Regrettably, the Supreme Court by and large agreed with the line of reasoning of the Arnhem Court of Appeal. Privacy First cannot help thinking that the LSP (even before the Supreme Court) is apparently too big too fail: by now this faulty system has grown to the extend that no one dares to declare it unlawful. There is, however, an important positive note, which can be found in the final consideration of the Supreme Court:
‘‘[The Court has] acknowledged that the healthcare infrastructure can be designed in such a way that a clearer distinction can be made between (sorts of) data and (categories of) healthcare providers and, particularly, in such a way that the exchange of data on the basis of consent can beforehand be limited to cases of urgency. The Court takes the view that such infrastructure would be better in line with the principles of the Privacy Directive and the Personal Data Protection Act, but that it could not have been demanded from VZVZ at the time of the contested ruling. According to the Court, VZVZ can be expected, however, to alter its system offering greater freedom of choice, as soon as this is technically possible and feasible.
These considerations are not incomprehensible. It is worthwhile noting that, considering (...) the regulatory changes and VZVZ’s ambitions in relation to the system (...), privacy by design and privacy by default as explicit points of departure (art. 25, paragraphs 1 and 2 General Data Protection Regulation), is what the Court can reasonably expect from VZVZ.’' (5.4.4)
Just like the Arnhem Court of Appeal, the Supreme Court clearly homes in on the implementation of specific consent and privacy-by-design when it comes to the LSP. The Supreme Court thereby creates a positive precedent which will set the scene for the future, also in a broader sense. Privacy First will continue to actively follow the developments in this case and, if necessary, will not hesitate to bring certain aspects to the attention of the courts once more.
HERE you find the amicus curiae letter written by Privacy First and the Dutch Platform for the Protection of Civil Rights (pdf in Dutch).
Comments from the Dutch Association of General Practitioners: http://www.vphuisartsen.nl/nieuws/cassatieberoep-vphuisartsen-verloren-toch-winst/
Comments from SpecifiekeToestemming.nl: http://specifieketoestemming.nl/werk-aan-de-winkel-na-teleurstellend-vonnis-over-lsp/.
The Dutch government and Parliament aim to quickly introduce the privacy-violating Tapping law. A coalition of privacy advocates will start interim injunction proceedings to prevent this from happening.
Implementation of unaltered Tapping law imminent
In recent months, there has been a thorough public debate in the Netherlands about the new Dutch Intelligence and Security Services Act, the so-called ‘Tapping law’. In a referendum that was held on 21 March 2018, a majority of the Dutch citizenry voted AGAINST this act. In response to this, the Dutch government has promised only a few minor, superficial policy changes as well as a few non-fundamental legislative amendments. Both the Dutch government and the House of Representatives have with full intent pushed for a prompt entry into force of the Tapping law in its unaltered form, as per 1 May to be exact. The envisaged legislative amendments will be presented by the government only after the summer. Regrettably, a motion to postpone the implementation of the Tapping law until after these legislative amendments have been discussed, was yesterday repealed by the House of Representatives. With that, it seems Parliament has had its say and it is now again up to society to make a move.
Interim injunction proceedings
It is Privacy First’s established policy to try to prevent massive privacy violations. Unmistakeably, the implementation of the current Tapping law is a massive privacy breach, because as a result of it, there will be large-scale tapping into the Internet traffic of innocent citizens and, moreover, the data of innocent citizens will be exchanged with foreign secret services without first being evaluated. This is a blatant violation of the right to privacy. Therefore, we cannot wait for any possible legislative amendments that serve to ‘rectify retrospectively’. After all, by that time the violations will have already occurred. Today, a coalition of Privacy First and various other civil organizations and companies urge the government to postpone the introduction of the Tapping law (or at least those parts of it that constitute the gravest privacy violations) until all legislative amendments have been discussed in Parliament. In case the government refuses this request, our coalition will not hesitate to start interim injunction proceedings in order to enforce the postponement of the Tapping law before court.
Alongside Privacy First, the coalition that has been created for these proceedings is comprised of the Netherlands Committee of Jurists for Human Rights (NJCM), Bits of Freedom, the Dutch Association of Criminal Defence Lawyers (NVSA), the Dutch Platform for the Protection of Civil Rights, Free Press Unlimited, BIT, Voys, Speakup, Greenpeace International, Waag Society and Mijndomein Hosting. The case is taken care of by Boekx Attorneys and is coordinated by the Public Interest Litigation Project (PILP) of the Netherlands Committee of Jurists for Human Rights. Apart from said interim injunction proceedings, since March 2017 Privacy First and other organizations are preparing a larger scale lawsuit in order for multiple parts of the Tapping law to be declared unlawful as it contravenes international and European privacy law.
Today, on behalf of the coalition, our attorneys will send a letter to the Dutch government (the ministers of the Interior and Defence) requesting the postponement of the implementation of the Tapping law. The government will have the opportunity to respond to this request until Friday, 20 April.
Update 20 April 2018: the government has rejected the appeal of the coalition. The coalition will now continue preparing interim injunction proceedings.
Update 17 May 2018: today the coalition summons has been sent to the Dutch state attorney; click HERE for the full version (pdf in Dutch). The summary proceedings will take place at the District Court of The Hague on Thursday 7 June 2018, 10.00 am - 12.00 pm CET.
Update 7 June 2018: this morning the hearing took place before the District Court of The Hague; click HERE for the pleading of our attorneys (pdf in Dutch). The court is expected to deliver a ruling on Tuesday, 26 June 2018.
Update 26 June 2018: to the great disappointment of Privacy First, today the District Court of The Hague has unfortunately rejected the case. Find the complete ruling (in Dutch) HERE. From a legal point of view, the bar was set high in these interim injunction proceedings: in order to be able to win our case, the judge had to declare the Tapping law ‘unequivocally ineffective’ on account of blatant (unequivocal) violation of international or European privacy law. However, the court ruling reads like a foregone conclusion in favor of the State, not least because various objections of our coalition have remained unidentified. That being said, it needs to be stressed (as the court itself does too), that this ruling constitutes only a preliminary opinion and that a thorough (‘full’) review was lacking in this case.
The coalition of organizations that has initiated these proceedings regrets the judgment. In view also of the result of the referendum, the coalition is of the opinion that the government should have waited to introduce the contested parts of the Tapping law until the parliamentary legislative process in response to the referendum is finished. Introducing the Tapping law unchanged on 1 May 2018 before proposing amendments at a later stage (after the summer) is and remains incorrect.
The coalition will soon discuss possible follow-up legal action.
The Dutch citizenry has rejected the new Dutch Intelligence and Security Services Act. This act will now have the be amended. If not, legal action will be pursued.
Historic red line
Wednesday 21 March 2018 is a historic day: for the first time ever, the populace of a nation has spoken out against a law on intelligence services in a referendum. In this referendum, the Dutch had the chance to cast their ballots on the new Dutch Intelligence and Security Services Act, better known as the ‘Tapping law’. By now, it is known that a clear majority is AGAINST the law. Privacy First considers this as a historic victory and hopes that, as a result, similar developments will unfold in other countries: developments that contravene mass surveillance and the creation of controlled societies, and that lead to better legislation with true respect for the liberty of innocent citizens.
Objections against the Tapping law
The main objections of Privacy First against the Tapping law relate to the fact that it authorizes not only large-scale tapping into the Internet traffic and communications of innocent citizens, but also allows for the storage of these data for many years and the unsupervised exchange of these data with foreign secret services. These and other concerns of Privacy First have been listed in alphabetical order. The liberty-restricting Tapping law should not be viewed in isolation, but is part of a wider negative trend, as can be read in a recent column (in Dutch) by Privacy First chairman Bas Filippini.
Right from the very start, Privacy First has supported the organization of the Dutch referendum against the Tapping law. Alongside Privacy First, there are numerous other civil organizations that have been very active over the past few months to inform the citizenry about the Act. Most of the work, however, has been done by the referendum instigators: the students of the University of Amsterdam who, at the end 2017, collected enough signatures to make this referendum possible. For this unique achievement, Privacy First gave them a Dutch Privacy Award at the start of this year. Privacy First has recently called on all political parties at municipal level to take a stand against the Tapping law. Furthermore, through public debates, advertisements and social media and through interviews on the radio, on television and in newspapers, we have been as active as possible to create a critical mass. Moreover, Privacy First organized a public debate about the Tapping law in Amsterdam. It featured various renowned speakers, among them our attorney Otto Volgenant and the Dutch National Coordinator for Counter Terrorism and Security Dick Schoof. This debate (in Dutch) has been broadcasted on NPO Politiek several times and can also be viewed on our website and on YouTube. Even according to advocates of the Tapping law, this referendum was characterized by a substantive discussion among critical and well-informed members of the public. It is also in this regard that the referendum can be called a great success, a bright day for democracy and something that has increased general awareness about privacy in the Netherlands. After today, abolishing the referendum, which is what the Dutch government intends to do, should really be out of the question.
The law should be improved. Otherwise there will be legal action.
The consequences of the Dutch referendum about the Tapping law are clear: the law should be modified and improved immediately. If not, Privacy First and various other plaintiffs (organizations) will start a large-scale lawsuit with the express purpose of having various parts of the Act declared unlawful and rendered inoperative by a judge. In 2015, Privacy First and coalition partners succeeded in suspending the Dutch Data Retention Act in the same way. In recent years, Privacy First has on several occasions warned the Dutch government as well as both houses of Dutch Parliament that a similar lawsuit against the Tapping law would be imminent. The result of the current referendum has bolstered our position enormously. By now, the summons against the government has been prepared and our attorneys are ready to litigate. The choice is up to the government: change course or back down!
"Twelve organizations teamed up to file a lawsuit to stop the implementation of a new data mining law in the Netherlands. The new law was adopted by the Dutch Senate on Tuesday and gives the intelligence services more capabilities to spy on internet traffic on a large scale.
"We trust that the Dutch judges will pull the brake and say: this law goes too far", human rights lawyer Jelle Klaas, who is representing the coalition of organizations in their lawsuit, said to RTL Nieuws. The coalition includes the Public Interest Litigation Project, civil rights organization Privacy First, the Dutch Association of Journalists, the Dutch Association of Criminal Law Attorneys and the Platform for the Protection of Civil Rights.
According to the organizations, this law is a serious violation of Dutch citizens' privacy. The case will first be presented to a Dutch court, who will test it against the European Convention of Human Rights. If the Dutch court rules against the organizations, they will take it to the European Court.
Klaas is currently preparing the case. He expects that the lawsuit will only actually start after the new law is implemented on January 1st, 2018, but he hopes it happens earlier."
Source: http://nltimes.nl/2017/07/12/lawsuit-started-new-dutch-data-mining-law, 12 July 2017.
Tomorrow morning the Netherlands will be examined in Geneva by the highest human rights body in the world: the United Nations Human Rights Council. Since 2008, the Human Rights Council reviews the human rights situation in each UN Member State once every five years. This procedure is called the Universal Periodic Review (UPR).
Privacy First shadow report
During the previous two UPR sessions in 2008 and 2012, the Netherlands endured a fair amount of criticism. At the moment, the perspectives with regard to privacy in the Netherlands are worse than they’ve ever been before. This is reason for Privacy First to actively bring a number of issues to the attention of the UN. Privacy First did so in September 2016 (a week prior to the UN deadline), through a so-called shadow report: a report in which civil society organizations express their concerns about certain issues. (It’s worth pointing out that the Human Rights Council imposes rigorous requirements on these reports, a strict word limit being one of them.) UN diplomats rely on these reports in order to properly carry out their job. Otherwise, they would depend on one-sided State-written reports that mostly provide a far too optimistic view. So Privacy First submitted its own report about the Netherlands (pdf), which includes the following recommendations:
Better opportunities in the Netherlands for civil society organizations to collectively institute legal proceedings.
Introduction of constitutional review of laws by the Dutch judiciary.
Better legislation pertaining to profiling and datamining.
No introduction of automatic number plate recognition (ANPR) as is currently being envisaged.
Suspension of the unregulated border control system @MIGO-BORAS.
No reintroduction of large scale data retention (general Data Retention Act).
No mass surveillance under the new Intelligence and Security Services Act and closer judicial supervision over secret services.
Withdrawal of the Computer Criminality Act III , which will allow the Dutch police to hack into any ICT device.
A voluntary and regionally organized (instead of a national) Electronic Health Record system with privacy by design.
Introduction of an anonymous public transport chip card that is truly anonymous.
Privacy First did not sent its report only to the Human Rights Council but also forwarded it to all the foreign embassies in The Hague. Consequently, Privacy First had extensive (confidential) meetings in recent months with the embassies of Argentina, Australia, Bulgaria, Chili, Germany, Greece and Tanzania. The positions of our interlocutors varied from senior diplomats to ambassadors. Furthermore, Privacy First received positive reactions to its report from the embassies of Mexico, Sweden and the United Kingdom. Moreover, several passages from our report were integrated in the UN summary of the overall human rights situation in the Netherlands; click HERE ('Summary of stakeholders' information', par. 47-50).
Our efforts will hopefully prove to have been effective tomorrow. However, this cannot be guaranteed as it concerns an inter-State, diplomatic process and many issues in our report (and in recent talks) are sensitive subjects in countless other UN Member States as well.
UN Human Rights Committee
In December 2016, Privacy First submitted a similar report to the UN Human Rights Committee in Geneva. This Committee periodically reviews the compliance of the Netherlands with the International Covenant on Civil and Political Rights (ICCPR). Partly as a result of this report, last week the Committee put the Intelligence and Security Services Act, camera system @MIGO-BORAS and the Data Retention Act among other things, on the agenda for the upcoming Dutch session in 2018 (see par. 11, 27).
We hope that our input will be used by both the UN Human Rights Council as well as the UN Human Rights Committee and that it will lead to constructive criticism and internationally exchangeable best practices.
The Dutch UPR session will take place tomorrow between 9am and 12.30pm and can be followed live online.
Update 10 May 2017: during the UPR session in Geneva today, the Dutch government delegation (led by Dutch Minister of Home Affairs Ronald Plasterk) received critical recommendations on human rights and privacy in relation to counter-terrorism by Canada, Germany, Hungary, Mexico and Russia. The entire UPR session can be viewed HERE. Publication of all recommendations by the UN Human Rights Council follows May 12th.
Update 12 May 2017: Today all recommendations to the Netherlands have been published by the UN Human Rights Council, click HERE (pdf). Useful recommendations to the Netherlands regarding the right to privacy were made by Germany, Canada, Spain, Hungary, Mexico and Russia, see paras. 5.29, 5.30, 5.113, 5.121, 5.128 & 5.129. You can find these recommendations below. Further comments by Privacy First will follow.
Extend the National Action Plan on Human Rights to cover all relevant human rights issues, including counter-terrorism, government surveillance, migration and human rights education (Germany);
Extend the National Action Plan on Human Rights, published in 2013 to cover all relevant human rights issues, including respect for human rights while countering terrorism, and ensure independent monitoring and evaluation of the Action Plan (Hungary);
Review any adopted or proposed counter-terrorism legislation, policies, or programs to provide adequate safeguards against human rights violations and minimize any possible stigmatizing effect such measures might have on certain segments of the population (Canada);
Take necessary measures to ensure that the collection and maintenance of data for criminal [investigation] purposes does not entail massive surveillance of innocent persons (Spain);
Adopt and implement specific legislation on collection, use and accumulation of meta-data and individual profiles, including in security and anti-terrorist activities, guaranteeing the right to privacy, transparency, accountability, and the right to decide on the use, correction and deletion of personal data (Mexico);
Ensure the protection of private life and prevent cases of unwarranted access of special agencies in personal information of citizens in the Internet that have no connection with any illegal actions (Russian Federation). [sic]
Update 26 May 2017: a more comprehensive UN report of the UPR session has now been published (including the 'interactive dialogue' between UN Member States and the Netherlands); click HERE (pdf). In September this year, the Dutch government will announce which recommendations it will accept and implement.
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.
Mass storage of fingerprints violates the right to privacy
Following the Court of Appeal of The Hague, today the Dutch Council of State (Raad van State) judged that municipal (‘decentral’) storage of fingerprints under the Dutch Passport Act is unlawful on account of violation of the right to privacy. The Council of State reached this conclusion in seven administrative law cases of Dutch individual citizens (supported by civil organization Vrijbit). At the start of 2014, the Court of Appeal of The Hague handed down a similar ruling in the civil Passport case by the Privacy First Foundation and 19 (other) citizens against the Dutch government. Subsequently however, our Passport trial was declared inadmissible by the Dutch Supreme Court and was redirected to the administrative judge: the Dutch Council of State. Privacy First then submitted its entire case file to the Council of State in order to reinforce the individual passport cases pending before this body. The Council of State (the supreme administrative court of the Netherlands) now rules similar to the way the Court of Appeal of The Hague has done before. Notwithstanding the later inadmissibility before the Supreme Court, the ban on the storage of everyone’s fingerprints in databases thus stands firm once again.
Faulty judgement and procedure
As was the case with the previous judgement by the Court of Appeal of The Hague, Privacy First regrets that the Council of State was unwilling to declare the storage of fingerprints unlawful on strictly principal grounds (that is, because of a lack of societal necessity, proportionality and subsidiarity), but merely on the basis of technical imperfections. Therefore, Privacy First will advise the concerned citizens to keep on litigating all the way up to the European Court of Human Rights (ECtHR) in Strasbourg. Considering the existing Strasbourg case law, there is a high likeliness that the Netherlands will still be condemned on principal grounds on account of violation of the right to privacy (art. 8 European Convention on Human Rights, ECHR). Privacy First also expects a condemnation on account of violation of the right of access to justice and an effective legal remedy (art. 6 and 13 ECHR). After all, civil litigation against the Dutch Passport Act proved to be impossible, and administrative legal action was possible only indirectly after the rejection of individual requests for new passports or ID cards (in case the applicants refused to have their fingerprints taken). In order to obtain their current victory before the Council of State, these citizens thus have had to get by for years without passports or ID cards, with all the problems and risks this entailed.
Exceptions for conscientious objectors
In today’s judgement, the Council of State also decided that the compulsory taking of two fingerprints for a new passport applies equally to everyone and that there can be no exceptions for people who do not want to have their fingerprints taken out of conscientious objections. Privacy First is doubtful whether this verdict will stand the scrutiny of the ECtHR. Apart from a violation of the right to privacy, it seems this decision is also in breach of the freedom of conscience (art. 9 ECHR). The fact that the European Passport Regulation does not include such an exception is irrelevant as this Regulation is subordinate to the ECHR.
RFID chips and facial scans
Privacy First also deplores the fact that the Council of State was not prepared to make a critical assessment of the risks of Radio Frequency Identification (RFID) chips (which include sensitive personal data that can be read remotely) in passports and ID cards. The same goes for the compulsory storage of facial scans in municipal databases. But these aspects, too, can still be challenged in Strasbourg.
Municipalities’ own responsibility
A small ray of hope in the judgement by the Council of State is that municipalities and mayors have their own responsibility to respect human rights (including the right to privacy) independently, even if this means independently refraining from applying national legislation because it violates higher international or European law:
"Insofar as the mayor claims that there is no possibility to deviate from the provisions (laid down in national law), the [Council of State] holds that pursuant to Article 94 of the [Dutch] Constitution, current statutory provisions within the Kingdom [of the Netherlands] do not apply if such application is not compatible with any binding provisions of treaties and of resolutions of international organizations.’’ (Source in Dutch, paragraph 6.)
This decision by the Council of State applies to all domains and could have far-reaching consequences in the future.
New ID cards for free
The ruling of the Council of State entails that for applications of new ID cards, fingerprints have been taken (and stored) on a massive scale but without a legal basis since 2009. Accordingly, Privacy First advises everyone in the possession of an ID card with fingerprints to change it (if desired) at his or her municipality for a free new one without fingerprints. If municipalities refuse to offer this service, Privacy First reserves the right to take new legal steps in this regard.
After numerous lawsuits in various European countries, the decision has finally been made: in a break-through ruling, the European Court of Justice has decided this week that a general requirement to retain telecommunications data (data retention) is unlawful because it is in violation of the right to privacy. This ruling has far-reaching consequences for surveillance legislation in all EU member States, including the Netherlands.
Previous data retention in the Netherlands
Under the 2009 Dutch Data Retention Act, the telecommunications data (telephony and internet traffic) of everyone in the Netherlands used to be retained for 12 months and 6 months, respectively, for criminal investigation purposes. This legislation stemmed from the 2006 European Data Retention Directive. However, in April 2014 the European Court of Justice declared this European Directive invalid because it violates the right to privacy. Subsequently, former Dutch minister of Security and Justice Ivo Opstelten refused to withdraw the Dutch Data Retention Act, after which a broad coalition of Dutch organizations and companies demanded in interim injunction proceedings that the Act would be rendered inoperative. The claimant organizations were the Privacy First Foundation, the Dutch Association of Defence Counsel (NVSA), the Dutch Association of Journalists (NVJ), the Netherlands Committee of Jurists for Human Rights (NJCM), Internet provider BIT and telecommunications providers VOYS and SpeakUp. Boekx Attorneys in Amsterdam took care of the proceedings, and successfully so: rather uniquely (laws are seldomly rendered inoperative by a judge, let alone in interim injunction proceedings), on 11 March, 2015, the Dutch district court in The Hague repealed the entire Act at once. The Dutch government decided not to appeal the ruling, which has been final since then. Consequently, all telecom operators concerned have deleted the relevant data. In relation to criminal investigations and prosecutions, so far this does not seem to have led to any problems.
European Court makes short shrift of mass storage once and for all
Unfortunately, the April 2014 decision of the European Court left some margin for interpretation under which broad, general retention of everyone’s telecommunications data could still be allowed, for example through close judicial supervision before access and use of those data. In a Swedish and a British case about data retention, the European Court has now ensured full clarity in favour of the right to privacy of every innocent person on European territory:
"The Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication’’, the Court judges.
In other words: mass storage of everyone’s data for criminal investigation purposes is unlawful. After all, according to the Court this ‘‘exceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society’’.
In conventional language, the Court basically says that such legislation doesn’t belong in a free democracy under the rule of law, but in a totalitatrian dictatorship instead. And this is exactly the raison d'être of the Charter of Fundamental Rights of the European Union (which was inspired by universal human rights), on which the verdict of the Court is based.
Consequences for the Netherlands
Recently the current Dutch minister of Security and Justice, Ard van der Steur, has again presented to the Dutch House of Representatives a legislative proposal to reintroduce a broad, general telecommunications retention Act. Moreover, a similar legislative proposal pending in the Dutch Senate concerns the recognition and retention of number plate codes of all cars in the Netherlands (i.e. everyone’s travel movements and location data). Following the EU Court ruling, both legislative proposals are unlawful in advance on account of violation of the right to privacy. The same goes for planned mass storage of data that flow in and out of the Netherlands through large internet cables under the new Dutch Intelligence and Security Services Act (and the international exchange thereof), the possible future reintroduction of central databases with everyone’s fingerprints, national DNA databases, national records which include everyone’s financial transactions, etc. etc.
Following the EU Court ruling, the Dutch government can draw one conclusion only: both the legislative proposal that regards the new telecommunications retention Act as well as the legislative proposal that relates to the registration on a massive scale of number plate codes, are to be withdrawn this instant. Otherwise Privacy First will again enforce this in court and will do likewise with every other legislative proposal that threathens to violate the right to privacy of innocent citizens on a large scale.
Privacy First wishes you happy holidays and a privacy-friendly 2017!