A broad coalition of organizations and companies is starting interim injunction proceedings against the Dutch government. The Privacy First Foundation, internet provider BIT, the Dutch Association of Journalists and the Dutch Association of Defence Counsel among others are demanding the abolition of the Dutch Telecommunications Data Retention Act. The Dutch Council of State and the European Court of Justice have already ruled that the Act is in violation of fundamental rights that protect private life, communications and personal data. However, the Dutch government refuses to render the Telecommunications Data Retention Act inoperative.
On 8 April 2014 the European Court of Justice declared the European Data Retention Directive (2006/24/EC) invalid with retroactive effect. According to the Court, retaining communications data of everyone without any concrete suspicion is in violation of the fundamental right to privacy. Objective criteria should be applied to determine the necessity of collection and retention of data and there should be prior control from an independent body or judge. Randomly and unrestrictedly collecting metadata (traffic data) in the context of 'mass surveillance' is not permitted, according to the Court.
In the Netherlands, regulations in this area are enshrined in the Dutch Telecommunications Data Retention Act, which largely mirrors the European Data Retention Directive. The Act provides that telecommunications companies and internet providers have to retain various data regarding internet and telephone usage for at least six and at most twelve months in order for judicial authorities to be able to use those data for criminal investigation purposes. Recently the Dutch Council of State ('Raad van State') judged that the Act does not comply with fundamental rights that protect private life, communications and personal data. However, the Dutch government does not heed the advice of the Council of State and refuses to repeal the Act. Compliance with the Act will be maintained by the government.
Vincent Böhre of Privacy First: "Mass surveillance constitutes a massive violation of citizens' privacy rights. It is unacceptable that the Dutch government clings to this practice after the highest European judge has already clearly stated back in April that this privacy violation is not permitted."
Thomas Bruning, Secretary of the Dutch Association of Journalists: "Telecommunications companies and internet providers are now obliged to retain a vast amount of communications data of all citizens. This includes journalists. Companies have to disclose these data at the request of the government. There is no guarantee whatsoever for the journalistic right of non-disclosure."
"The Dutch regulations are in breach of the applicable European fundamental rights", states Fulco Blokhuis, partner at Boekx Attorneys, who has meanwhile drafted a subpoena. "This situation is as disconcerting as it is undesirable. Maintaining this Act is unlawful, both towards citizens as well as companies who are forced to stay in possession of traffic data."
Alex Bik of internet provider BIT: "When the Dutch government introduced the Act, it hid behind the argument that the introduction was simply imposed upon by Europe, but since the European Data Retention Directive has been repealed with retroactive effect, this argument all of a sudden is no longer deemed valid by the government. That is not right."
Otto Volgenant of Boekx Attorneys: "As the Dutch Minister of Security and Justice, Ivo Opstelten, is unwilling to abolish the Telecommunications Data Retention Act, we will request the court to either render the Act inoperative or to prohibit its application any longer. We will shortly be issuing interim injunction proceedings."
Update 12 January 2015: the interim injunction proceedings against the Dutch government pertaining to the retention of telecommunications data will take place before the district court of The Hague in a public hearing on Wednesday 18 February 2015 at 11:00 hours. Meanwhile, the renowned Netherlands Committee of Jurists for Human Rights (NJCM) has joined the coalition of claimant organizations. Click HERE (pdf, in Dutch) for the subpoena, click HERE for a press release from Boekx Attorneys (in Dutch) and HERE for an article (in Dutch) which appeared on the website of Dutch newspaper Telegraaf this morning.
Update 30 January 2015: yesterday a hearing (roundtable) about the Dutch Data Retention Act took place in the Dutch House of Representatives. Click HERE for a schedule of the hearing (pdf) and HERE (pdf, in Dutch) for the talking points that Privacy First sent to the House of Representatives prior to the hearing (pdf). The lack of necessity and proportionality of the current Data Retention Act were the main topics that were discussed by Privacy First during the roundtable. Other aspects that were raised by Privacy First related to the chilling effect in society as well as the potential for function creep that the Act brings about.
Update 13 February 2015: today, on behalf of the State, the Dutch State Attorney submitted a Statement of Defence; click HERE (pdf in Dutch, 9 MB). The admissibility of the claimant organizations will not be challenged by the Dutch government, the State Attorney told our own attorneys by telephone. Therefore the proceedings will immediately focus on the merits of the case, rather than on procedural requirements. This is a breakthrough development: in similar cases the admissibility of the claimant parties was almost always contested by the State. A crucial lawsuit concerning such admissibility (our Passport Trial against the storage of fingerprints) is currently being conducted by Privacy First against the Dutch government before the Supreme Court of the Netherlands. Privacy First is of the opinion that the recognition of admissibility by the State Attorney in the interim injunction proceedings against the Telecommunications Data Retention Act puts Privacy First in a stronger position for this and future lawsuits that revolve around the right to privacy. Moreover, in times when access to justice of individual citizens in the Netherlands is increasingly under financial pressure, the admissibility of civil society organizations such as Privacy First forms an important safeguard for a well functioning Dutch democracy under the rule of law.
Update 18 February 2015: in front of a full courtroom (many civil servants, citizens, students and journalists were in attendance), today Privacy First et al. crossed swords with the State; click HERE for the plea of our attorneys (pdf in Dutch) and HERE for the pleadings of the State Attorney (pdf, in Dutch). The judge listened carefully but didn't ask any questions. As yet, Wednesday 11 March 2015 has been determined as the date of the judgment.
Update 11 March 2015: in a break-through verdict today, the district court of The Hague has rendered the Dutch Data Retention Act inoperative; click HERE.
In a groundbreaking judgment, the Hague Court of Appeal has today decided that centralised storage of fingerprints under the Dutch Passport Act is unlawful. The Privacy First Foundation and 19 co-plaintiffs (Dutch citizens) had put forward this legal issue to the Court of Appeal in a so-called 'action of general interest' ("algemeen-belangactie"). In February 2011, the district court of The Hague had declared Privacy First inadmissible. Because of this, the district court couldn't address the merits of the case. The Court of Appeal has now declared Privacy First to be admissible after all and has quashed the judgment of the district court. Moreover, the Appeals Court deems centralised storage of fingerprints under the Dutch Passport Act to be unlawful since it violates the right to privacy. Therefore it seems that centralised storage of fingerprints under the Dutch Passport Act will be shelved once and for all.
In May 2010, Privacy First et al. took the Dutch government (Ministry of Home Affairs) to court on account of the centralised storage of fingerprints under the new Dutch Passport Act. Such storage had mainly been intended to prevent small-scale identity fraud with Dutch passports (look-alike fraud).
Partly due to the pressure exerted by this lawsuit of Privacy First, central storage of fingerprints was brought to a halt in the Summer of 2011. The judgment by the Hague Court of Appeal has now made any future centralised storage of fingerprints legally impossible: the Court deems centralised storage of fingerprints an "inappropriate means" to prevent identity fraud with travel documents. According to the Court "this cannot but lead to the conclusion that the infringement upon the right to privacy caused by centralised storage of fingerprints is not justified. In that regard the district court should have awarded the claim of Privacy First." (Para. 4.4.)
This is a great victory for Privacy First and for all the citizens who have stood up against centralised storage of fingerprints under the Dutch Passport Act in recent years. The judgment by the Court also paves the way for Privacy First (and other civil society organizations) to continue to initiate lawsuits in the general interest for the preservation and promotion of the right to privacy, for example the new lawsuit by Privacy First et al. against the Dutch government on account of illegal data espionage (NSA case). Recently the Dutch State Attorney deemed Privacy First to be admissible in this case too. These developments are a great impetus for Privacy First to continue to take legal steps in the coming years for the sake of everyone's right to privacy.
Read the entire judgment by the Hague Court of Appeal HERE (pdf in Dutch; for a text-version on the website of the Netherlands Judiciary, click HERE).
Click HERE for the press release by our attorneys of Bureau Brandeis.
Update 21 May 2014: the Dutch government appears to be a sore loser: earlier this week the State Attorney has lodged an appeal (in Dutch: 'cassatie') against the ruling of the Hague Court of Appeal at the Supreme Court of the Netherlands; click HERE (pdf in Dutch) for the appeal summons. The Dutch government wants Privacy First to be declared inadmissible after all and calls on the Supreme Court to still declare central storage of fingerprints lawful. This must not happen. Privacy First is considering its options in its own defence.
Update 21 November 2014: today Privacy First et al. have submitted to the Supreme Court their statement of defence against the appeal summons; click HERE for the document (pdf in Dutch). In the appeal, Privacy First et al. are being represented by Alt Kam Boer Attorneys in The Hague; this law-office is specialised in Supreme Court litigation. On behalf of the Dutch government (Ministry of Home Affairs) the State Attorney has today submitted a written explanation to the previous appeal summons; click HERE (pdf in Dutch). The next steps could consist of a written reply and rejoinder, followed by advice (''conclusion'') from the Procurator General at the Supreme Court (to which Privacy First et al. would be able to respond) and a judgment by the Supreme Court midway through 2015.
Update 5 December 2014: today Privacy First et al. have delivered an early Christmas present to the Dutch Minister of Home Affairs: our written reply (rejoinder) to the recent explanation of the Ministry of Home Affairs to the previous appeal summons. Click HERE for the document (pdf in Dutch). The Dutch government, in turn, submitted a short reply to the recent statement of defence by Privacy First et al.; click HERE (pdf in Dutch). On 9 January 2015 the Supreme Court will set a date on which the Procurator General will issue his advice.
Update 12 January 2015: the Procurator General at the Supreme Court will issue his advice ("conclusion") on 10 April 2015.
Update 12 March 2015: Much earlier than expected, Advocate General Mr. Jaap Spier delivered his advice (''conclusion'') in the case to the Supreme Court on 20 February 2015; click HERE (pdf in Dutch, 7 MB). Its conservative contents and tone are notable aspects of his advice. Furthermore, the Advocate General wrongfully assumes that the contested provisions of the Dutch Passport Act had never become legislation. While he upholds Privacy First's admissibility, he does so on the wrong legal grounds. Moreover, the Advocate General does not touch on the substance of the privacy issues at all, is incorrect in his view that proceedings could have taken place before an administrative judge and, erroneously, wants Privacy First et al. to still pay for the legal costs of the proceedings. In response to the advice of the Advocate General, within the formal term of two weeks Privacy First submitted a response letter ("Borgers brief") to the Supreme Court; click HERE (pdf in Dutch). No such letter has been submitted by the Dutch State Attorney. Therefore, Privacy First has had the final say in this case. We will now have to wait for the Supreme Court ruling, which is expected later this year.
By now basically everyone is aware of the far-reaching eavesdropping practices by the American National Security Agency (NSA). For years the NSA has been secretly eavesdropping on millions of people around the world, varying from ordinary citizens to journalists, politicians, attorneys, judges, scientists, CEOs, diplomats and even presidents and heads of State. In doing so, the NSA has completely ignored the territorial borders and laws of other countries, as we have learned from the revelations by Edward Snowden in the PRISM scandal. Instead of calling the Americans to order, secret services in other countries appear to be all too eager to make use of the intelligence that the NSA has unlawfully obtained. In this way national, European and international legislation that should safeguard citizens against such practices is being violated in two ways: on the one hand by foreign secret services such as the NSA that collect intelligence unlawfully, and on the other hand by secret services in other countries that subsequently use this intelligence. This constitutes an immediate threat to everyone’s privacy and to the proper functioning of every democratic constitutional State. This is also the case in the Netherlands, where neither the national Parliament nor the responsible minister (Mr. Ronald Plasterk, Home Affairs) has so far taken appropriate action. This situation cannot continue any longer. Therefore a national coalition of Dutch citizens and organizations (including the Privacy First Foundation) has today decided to take the Dutch government to court and demand that the inflow and use of illegal foreign intelligence on Dutch soil is instantly brought to a halt. Furthermore, the coalition demands that the Dutch government notifies all citizens whose personal data have been illegally obtained. These data must also be deleted.
These legal proceedings by the Privacy First Foundation primarily serve the general interest and aim to restore the right to privacy of every citizen in the Netherlands. The lawsuit is conducted by bureau Brandeis; this law firm also represents Privacy First and 19 co-plaintiffs (Dutch citizens) in our Passport Trial against the Dutch government. Privacy First is confident it will soon have positive outcomes in both of these cases.
Click HERE to read the subpoena as it was presented to minister Plasterk today. (Dutch only)
Apart from Privacy First, the coalition of plaintiff parties consists of the following organizations and citizens:
- The Dutch Association of Defence Counsel (Nederlandse Vereniging van Strafrechtadvocaten, NVSA)
- The Dutch Association of Journalists (Nederlandse Vereniging van Journalisten, NVJ)
- The Dutch chapter of the Internet Society (ISOC.nl)
- Jeroen van Beek
- Rop Gonggrijp
- Bart Nooitgedagt (represented by the NVSA)
- Matthieu Paapst (represented by ISOC.nl)
- Brenno de Winter (represented by the NVJ).
Update 5 February 2014: today the Dutch government (Ministries of Home Affairs and Defence) has responded to the subpoena in a comprehensive statement of defence; click HERE for the entire document (pdf; MIRROR) and HERE for the press release by our attorneys of bureau Brandeis (in Dutch). It is remarkable that the State Attorney only deems the Privacy First Foundation admissible (see p. 31). This means that Privacy First is only one step away from standing before the judges of the district court of The Hague. This development is also of great importance for our Passport Trial, in which that same court at an earlier stage deemed Privacy First et al. inadmissible. The Hague Court of Appeal is currently looking into this legal issue once more. In the point of view of Privacy First, the court should declare all plaintiffs (citizens and organizations) admissible in both the court case concerning the NSA as well as our lawsuit regarding the Dutch biometric passport.