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
New European PSD2 legislation in force
At the start of 2019, the Payment Service Directive 2 will enter into force in the Netherlands. Under this new European banking law, consumers can share their banking details with parties other than their own bank. This first requires their explicit consent, upon which banks must share all transactional data of the consumer (account holder) with an external party (financial service provider) for a period of 90 days, after which the consumer can renew his consent. The consumer can also withdraw his consent at all times.
PSD2 is a great concern to Privacy First
Privacy First is very worried about PSD2. The law focuses too much on improving competition and innovation while the privacy interest of account holders is overlooked. These are Privacy First’s greatest concerns:
- Consumers are not in a position to limit the amount of banking details. Even in case a financial service provider does not need these details, all data are shared just the same once the account holder has issued his consent.
- The bank details of a consumer include the details of contra accounts. Holders of such accounts are unaware of the fact that their details may be shared and are not in a position to prevent that. As transactional data will be analyzed much more widely with the use of Big Data and data analyses than before the introduction of PSD2, there will be a much greater risk of privacy violations.
- Banking details contain ‘sensitive personal data’ that may only be issued under strict conditions. A subscription payment to a trade union, political party or organization that reveals one’s sexual preferences, should be considered sensitive personal data according to Privacy First. The same applies to transactions with health insurance companies and pharmacists. Currently, there is no way to filter out these data and they are being issued to parties that are not allowed to process them.
During an episode of the Dutch television program Radar that was broadcast on Monday 7 January 2019, Privacy First drew particular attention to these issues.
PSD2 quality label aims for transparency
Privacy First wants consumers to get honest and transparent information on what happens to their data. We advocate not for lengthy privacy statements, but rather for information that fits on a single sheet of paper. This information should not come from the financial industry, but from consumers themselves. After all, they can best decide which information they find valuable when making a choice. During 2018, Privacy First worked on this initiative along with the Volksbank and other partners from the financial sector.
PSD2 opt-out register
Privacy First is surprised that no attention has been paid to the role of ‘sensitive personal details’ in transactional data. Such details may only be shared under strict conditions and therefore have to be filtered out. Equally, consumers who do not want others to share their data with financial service providers should have the opportunity to prevent this. That is why Privacy First would like to see an opt-out register, similar to the do-not-call-me register which has been around in the Netherlands for many years. During the Radar broadcast, Privacy First announced it would bring forward this proposal, hoping to be able to develop it further together with the financial sector and policy makers. The aim is to have a compulsory opt-out register. This will, however, require amending the European PSD2 directive.
 Additional information: it concerns all transactional data. The extent to which these data go back in time varies per bank. See the overview (in Dutch) of the Dutch consumer association: The majority of account holders saves their bank statements for at least five years https://www.consumentenbond.nl/betaalrekening/meerderheid-bewaart-rekeningafschriften-ten-minste-5-jaar.
 Additional information: this is included in Article 9 of the GDPR and in Article 22 of the Dutch GDPR implementation Act. In short, processing sensitive personal data is unlawful, with a few exceptions. See (in Dutch) https://wetten.overheid.nl/BWBR0040940/2018-05-25.
During a Dutch press meeting about the new Payment Service Directive 2 (PSD2), an initiative to launch a privacy quality label for payment services was announced. This quality label should encourage financial service providers and fintech companies to focus on the privacy of consumers.
If you struggle to make ends meet, sooner or later you will get physical complaints, two Utrecht physicians wrote in Dutch newspaper AD/Utrechts Nieuwsblad of 7 March 2018. Those who want to lead a healthy life, will first have to make sure they’re in a healthy financial position. Being in control of your own finances and all related data is a part of that. De Volksbank offers a helping hand in both these areas.
The new European Payment Service Directive 2 (PSD2) paves the way for payment apps of new parties. Banks no longer have the exclusive right to offer payment services. This appears to be good news for consumers. But there is a downside too. Customers who share their data with any such new service provider, should take into account that part of those data are privacy-sensitive. A bank cannot recover such data once in the hands of other financial service providers, so the consumer cannot resort to anyone but himself if he regrets his decisions.
The Dutch Consumers' Association (Consumentenbond) has recently warned that personal data are already being collected on a large scale for commercial reasons. With the introduction of PSD2, this will only increase. Ninety days of access to personal information is sufficient for service providers to create digital profiles that can be traded. De Volksbank does not want to create profiles and is of the opinion that client information should be secure in the hands of the bank: ‘‘That means that we don’t sell information of clients, neither on an individual nor on an aggregated level. We earn our money as a bank, not by selling the data of our clients.'’
De Volksbank considers it to be its role of helping clients deal with their data in a secure and deliberate way in an environment that has changed. By providing information (free is never really free), but also by encouraging clients to take additional measures:
- When it comes to taking deliberate decisions on sharing data, clients should increase their self-awareness by operating a Main Switch. The default setting of the Main Switch should be ‘off’. Before a client is able to authorize the bank to share his data with third parties, he should first flick the Main Switch. The client should then authorize the sharing of data for each party. In so doing, he can stop sharing his data with any party at any moment. Alternatively, he can flick the Main Switch, blocking the access to his data of all parties in a single instant.
- In cooperation with De Volksbank, several other banks, KPMG and fintech companies, Privacy First is developing a PSD2 quality label. This should answer the call of the Central Bank of the Netherlands (DNB), which ascertained that as of yet there is no such quality label, while there is the need to have one. As far as we know, the Netherlands is the first country to be working on this issue. Thanks to the PSD2 quality label, consumers should at once be able to tell which parties they can or cannot entrust their data to. De Volksbank is working hard on further developing the quality label in order for it to be ready as soon as the Payment Service Directive 2 has been transposed into Dutch legislation.
The Privacy First Foundation supports the PSD2 privacy quality label. Privacy First would like it to become an international label which is recognized and supported by banks, fintech companies, financial service providers, regulators and consumer organizations.
PSD2 offers advantages, but also puts people’s privacy at risk. People are more than just consumers. Privacy First doubts whether the measures laid down in PSD2 to protect the data and therewith the privacy of people, will be sufficient. For the protection of personal data, PSD2 relies heavily on the new General Data Protection Regulation (GDPR). This regulation has not yet come into force and we don’t know which effects PSD2 will have in practice and what the monitoring of it will look like. Many organizations are not yet ready to comply with all of the GDPR requirements. However, they will not hold off providing their services. In turn, regulators are not yet ready to enforce all aspects of the GDPR. Introducing PSD2 is like going out to fly without checking the parachute.
We hope that the quality label will encourage financial service providers and fintech companies to start considering consumers as human beings. We want the requirements of the label to be set higher each year. We also want service providers to consider the ‘information behind the information’:
- The disclosure of behavior and data by others
- Services with the underlying aim of collecting data (improper application)
- Deducting data, such as transaction data from which sensitive personal data can be deduced.
We call on fintech companies to continue to explore ways to limit the amounts of data they collect and store. Think of excluding transaction data that could indicate religion, political preference or health status. Limiting the retention period of transaction data is another measure to take into consideration.
This article has also been published on privacy-web.nl.
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!
EU Passenger Name Records: every airline passenger a potential suspect.
Today is a historic day in both a positive and a negative sense: on the one hand European Parliament has taken an important step forward in the area of privacy by adopting the General Data Protection Regulation. On the other hand, that same parliament has today concurred with large-scale storage of data of European airline passengers. As a result, every airline passenger becomes a potential suspect.
The General Data Protection Regulation will replace national privacy legislation in all EU Member States (this includes the Dutch Data Protection Act, Wet bescherming persoonsgegevens) and, in broad terms, will lead to better privacy protection throughout the European Union. Privacy Impact Assessments and Privacy by Design will become obligatory. These are two important features which Privacy First has for years been advocating for. Fundamental privacy principles such as necessity, proportionality and subsidiarity (obligatory use of privacy-friendly alternatives) will be more strongly enshrined and better elaborated.
In this light it is surprising that on the same day European Parliament has also adopted a measure that is in blatant disregard of these selfsame principles: the European Passenger Name Records (PNR) Directive. Under this PNR Directive, the data of all European airline passengers will be stored in centralized government databases for the duration of five years for the detection and prosecution of serious crimes, counter-terrorism, intelligence gathering, etc. Large amounts of travel data (names and addresses, telephone numbers, destinations, credit card data, even meals and service requests) of millions of people will therefore remain available to law enforcement and intelligence services for the purpose of datamining and profiling.
However, in 99.99% of all cases this concerns innocent citizens, most of which are people on vacation and business travellers. This constitutes a flagrant violation of their right to privacy and freedom of movement. Because of this, in recent years there had been a lot of political resistance against this plan which, since 2010, has been repealed on various occasions by both the Dutch House of Representatives as well as European Parliament. Last year, Dutch ruling parties VVD (Liberals) and PvdA (Labour) were still resolutely opposed to PNR. At the time, these parties referred to it as a ‘vacation register’ and even threatened to turn to the European Court of Justice in case the EU PNR Directive were to be approved of. But after the attacks in Paris and Brussels, many political reservations now seem to have disappeared like snow melting in the sun. Meanwhile, the necessity and proportionality of large-scale PNR storage has still not been proven. In the view of Privacy First, this PNR Directive is therefore unlawful in advance.
At the moment Privacy First is looking into legal steps to sweep this directive aside after all, either through a Dutch court or by lodging a direct appeal before the European Court of Justice in Luxembourg. Additionally, Privacy First will continue to advocate for a privacy-friendly PNR system which records and monitors only suspected individuals and leaves the vast majority of travellers alone.
© RTL Nieuws
In the Dutch Citizens v. Plasterk case about the international exchange of data between secret services, the coalition of citizens and organizations (including Privacy First) has explained its appeal before the Hague Court of Appeals. In its statement of appeal, which was submitted to the Court on 2 February 2016, the coalition details why the ruling of the district court of The Hague (in Dutch) is wrong.
In summary, the district court of the Hague has ruled that the collaboration and exchange of data on the basis of trust between Dutch secret services and foreign secret services (among which the American NSA) may simply be continued. According to the judge, the importance of national security is the determining factor, thereby essentially giving the Dutch AIVD (general intelligence and security service) and MIVD (military intelligence and security service) carte blanche to collect bulk data of Dutch citizens via foreign intelligence agencies without any legal protection, only because of the designation ‘national security’.
The Citizens v. Plasterk coalition deems this ruling to be in flagrant breach of the right to privacy and has lodged an appeal. It must be noted that the coalition isn’t seeking to ban the collaboration with foreign services as such. However, we find that when it comes to collaborating and receiving data, strict safeguards should be maintained. Failure to do so means that data that has been obtained by the NSA and other intelligence services in violation of Dutch law, illegally end up in the hands of Dutch intelligence services. This comes down to the laundering of data through an illegitimate U-turn.
"By using NSA data, minister Plasterk and his services are laundering illegally obtained data. This case should put an end to that", says our lawyer Christiaan Alberdingk Thijm of bureau Brandeis. Read our entire statement of appeal HERE (pdf in Dutch).
The Dutch government will first have to react to our statement of appeal in a statement of defence on appeal, after which the Hague Court of Appeals will schedule a hearing and render a ruling.
Meanwhile, our coalition has been admitted to intervene in the legal proceedings against the British government that the British organization Big Brother Watch et al. have brought before the European Court of Human Rights (ECtHR). This is a significant development because as a result, the ECtHR may, at an early stage, be able to issue a verdict that is relevant to our Dutch case. Click HERE (pdf) for the recent decision on admissibility by the European Court and HERE for more information about the British case on the Court's website.
The Citizens v. Plasterk case
At the end of 2013, the Citizens v. Plasterk coalition summoned the Dutch government, represented by the Dutch minister of the Interior, Ronald Plasterk. This was prompted by Edward Snowden’s revelations about the practices of (foreign) intelligence services. The coalition demands that the Netherlands stops using data that have been obtained in violation of Dutch law.
In February 2014 the case almost led to minister Plasterk’s withdrawal from office. It had emerged that Plasterk had wrongfully informed the Dutch House of Representatives on the exchange of data between Dutch and foreign intelligence services. The Dutch services had passed on 1.8 million items of data to the Americans and not the other way around, as he had previously claimed.
In July 2014 the district court of The Hague rejected the claims of the coalition, after which the coalition lodged an appeal before the Hague Court of Appeals.
At the end of 2015 it became known that the coalition may participate in a British lawsuit before the European Court of Human Rights in Strasbourg.
The participating citizens in the coalition are: Rop Gonggrijp, Jeroen van Beek, Bart Nooitgedagt, Brenno de Winter and Mathieu Paapst. The participating organizations are: the Privacy First Foundation, the Dutch Association of Defence Counsel (NVSA), the Dutch Association of Journalists (NVJ) and Internet Society Netherlands.
The case is taken care of by bureau Brandeis, in particular by our lawyers Christiaan Alberdingk Thijm and Caroline de Vries, who make use of the bureau Brandeis’s pro-bono fund.
Update 9 February, 2016: today the coalition submitted its written submissions to the European Court of Human Rights, click HERE (pdf).
"Facebook continues to breach personal data privacy rights in Europe, says a group of human rights organizations, and it demands that Facebook’s EU-US data transfers stop by February 6, 2016. Facebook has formally responded.
As previously reported, the Privacy First Foundation, Public Interest Litigation Project PILP and the Dutch Platform for the Protection of Civil Rights (collectively, “Privacy First”) sent Facebook a demand letter, to which Facebook has now replied in writing.
Facebook’s written response
Facebook responded to Privacy First’s demand letter by giving written assurances of data protection in accordance with current law–that is, those parts of the Privacy Directive that survived the ruling in Schrems, the case that invalidated Safe Harbor.
Specifically, Facebook states that “the grounds for transfer of data set out in Article 26 of the Directive remain entirely lawful,” and that it complies with “these other grounds to transfer data legally from the European Union to the United States .” Facebook further challenged the Dutch tribunal Privacy First plans to use, as lacking competence over Facebook Ireland, the party it asserts is the data controller for data of Facebook Netherlands.
Privacy First’s reply
Privacy First, in its reply through its counsel Boekx, Amsterdam, reiterated its position that the other instruments currently used as basis for EU-US data transfers (such as Standard Contractual Clauses or individual consent) are “fundamentally flawed, as these options do not resolve the problems identified by the European Court of Justice in the Schrems judgment.”
Privacy First’s reply further reserves its rights to initiate legal proceedings in the Hague “requesting a preliminary injunction and/or raising prejudicial questions with the European Court of Justice” if Facebook doesn’t stop EU-US data transfers or provide adequate protections by February 6th, 2016.
Clearly, Privacy First and its co-plaintiffs are not happy with Facebook's response. (...)
Facebook’s letter also challenges the competence of Dutch courts to hear proceedings in the Netherlands against Facebook Ireland, which it alleges is the true data controller, not Facebook Netherlands B.V. Regarding the competence issue, [Boekx] said that Dutch courts have rendered decisions in the past against both Facebook parties.
As reported, the EU and US are currently negotiating replacement of the Safe Harbor Agreement; there is a meeting of the negotiating parties scheduled for February 2nd to discuss EU-US data transfers and how to ensure protections for EU citizens in the legal uncertainties left by Schrems.
Further delays possible
Due to delay in legislation in the U.S. that may be one of the EU’s preconditions to Safe Harbor (the Judicial Redress Act), further delays in Safe Harbor resolution are expected (by some) that could take those negotiations beyond the February 6 deadline set by Privacy First. These delays could set Facebook up for proceedings that, if successful, would result in a shutdown of its EU-US data transfers. (...)"
Source: http://www.forbes.com/sites/lisabrownlee/2016/01/27/facebook-fires-back-in-eu-privacy-dispute/#2fe9f2801d5b, 27 January 2016.
"Non siamo la pecora nera, e rispettiamo le stesse regole degli altri. Potremmo così sintetizzare il nocciolo della difesa di Facebook contro le accuse di alcune organizzazioni pro-privacy e utenti olandesi che hanno chiesto, con lettera formale, di impedire il trasferimento di dati personali degli iscritti verso gli Stati Uniti, dove risiedono molti suoi data center e molte delle sue aziende inserzioniste. Minacciando azioni legali nel caso il social network non interrompa questa pratica prima del 16 gennaio. Le radici della vicenda sono note: dalla denuncia inoltrata nel 2013 dallo studente austriaco Max Schrems, fino alla recente decisione della Corte di Giustizia dell’Unione Europea di invalidare gli accordi regolati dal Safe Harbor.Vero è che le nuove regole comunitarie travolgono non solo la creatura di Mark Zuckerberg bensì circa quattromila aziende statunitensi presenti sul Web, però è altrettanto vero che l’attenzione mediatica e le preoccupazioni si concentrano inevitabilmente su Facebook, luogo dove più di ogni altro le vite private diventano condivise. Ma anche il social network delle immagini, Instagram, e la più popolare fra le applicazioni di messaggistica, WhatsApp (entrambe proprietà dell’azienda di Menlo Park) sono coinvolti.
La lettera in questione, infatti, è stata inviata alle sedi di Facebook in California, in Olanda e in Irlanda così come alle sedi di Instagram e Whatsapp. Il mittente è uno studio legale di Amsterdam, Boekx, che parla in rappresentanza di tre associazioni pro-privacy (Stichting Privacy First, Public Interest Litigation Project e Dutch Platform for the Protection of Civil Rights) e di privati cittadini olandesi. La richiesta è, appunto, quella di interrompere il trasferimento dei dati verso gli States entro le ore 18 del gennaio, a meno di non voler incorrere in azioni legali.
Nelle parole dell’avvocato Otto Volgenant dello studio Boekx, “Vogliamo fare pressione su Facebook” e indurre Zuckerberg a pronunciarsi in merito al dibattito sulla privacy in corso nei governi di diversi Paesi. Se poi Facebook facesse ostruzionismo, la protesta degli olandesi potrebbe arrivare dapprima in un tribunale nazionale e poi da qui alla Corte Europea di Giustizia.
La replica della società californiana, arrivata tramite Forbes da un portavoce dell’azienda, Matt Steinfeld, esordisce ribadendo che il social network “utilizza i medesimi meccanismi impiegati da migliaia di altre aziende per trasferire legittimamente dati dall’Europa agli Stati Uniti e ad altri Paesi in tutto in mondo”. E poi fa una proposta: “Crediamo che il modo migliore per risolvere l’attuale dibattito sul trasferimento dei dati oltre l’oceano sia creare un nuovo patto di Safe Harbour, che garantisca adeguate tutele ai cittadini europei”. Il social network, dunque, non si sottrae alla possibilità di modifiche del regolamento ma anzi si auspica che le discussioni in corso fra organismi regolatori europei e statunitensi, e fra essi e i rispettivi governi sfocino presto in un “esito positivo”, ha dichiarato Steinfeld."
Source: http://www.ictbusiness.it/cont/news/l-attacco-olandese-e-la-difesa-facebook-non-siamo-peggio-di-altri/36065/1.html#.VoJYKfFIiUn, 17 December 2015.
"Facebook, Inc. and related entities have received a letter demanding them to stop EU-US data transfers until U.S. laws comply with the EU data protection regime, or risk lawsuit in the Netherlands. Facebook must cease transfer by 15 January 2016. The complaining parties have reserved rights to file suit if compliance is not forthcoming.
The demand and summons letter was sent today by the Boekx law firm in Amsterdam on behalf of numerous plaintiffs including:
• Privacy First Foundation (Stichting Privacy First)
• Public Interest Litigation Project PILP
• Dutch Platform for the Protection of Civil Rights
and other users of Facebook, Instagram and WhatsApp. The letter was sent to Facebook Netherlands B.V., Facebook Ireland Limited, Facebook Inc. and Instagram LLC (California), and WhatsApp Inc. (California).
Facebook spokesperson Matt Steinfeld provided (...) the following written statement:
“Facebook uses the same mechanisms that thousands of others companies across the EU use to transfer data legally from the EU to the US, and to other countries around the world. We believe that the best solution to the on-going debate around transatlantic data transfers is for there to be a new Safe Harbor agreement with appropriate safeguards for EU citizens.”
“We understand that authorities in the EU and US are working hard to put such an agreement in place as soon as possible. We trust that these groups are engaging with their respective governments on this process to help it reach a successful conclusion.”
Lawsuit intended to pressure Facebook
Otto Volgenant of the Boekx stated to Dutch outlet RTLZ, “We want to put pressure on Facebook. Mark Zuckerberg must make its voice heard in the debate about privacy, the US government has the solution for this problem.” According to Volgenant (as reported), the case would first be brought in The Hague, which could exercise its option to refer the case to the European Court of Justice.
Volgenant predicted that such referral would not be made, given the clarity of law on the topic since the recent Schrems ruling of the European Court of Justice (discussed further below).
U.S. compliant-laws required
Specifically, the demand requires that Facebook “end the current unlawful transfer of personal data from the European Union to the United States” until the U.S. adopts laws “essentially equivalent to” European data protection laws, or face lawsuit in the Netherlands. The summons gives Facebook until Friday 15 January 2016 (18:00 CET) to cease EU-US transfers, or risk having a court force it and related Facebook entities, through an injunction, to cease such transfers.
Facebook “remarkably absent” in data privacy discussions
In its letter, Boekx accuses Facebook of being “remarkably absent” in the public debate over EU-US data transfers, following the European Court of Justice decision in Schrems, which decision invalidated the so-called “Safe Harbor Agreement” between the U.S. and the E.U. and thus made such transfers illegal under E.U. law., effective immediately upon rendering of that decision. (...)
The demand letter further articulates the specifics of the Schrems decision, including that court’s conclusions that the NSA violated “European fundamental rights to respect for private life” by its “access on a generalized basis to the content of electronic communications.”
The letter concludes:
If we cannot find an amicable solution and Facebook does not refrain from further transfer of personal data of data subjects from the European Union to the United States by then, we reserve the right to initiate legal proceedings in the Netherlands and to request a preliminary injunction from the competent Dutch Court."