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!
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.
Christmas column by Bas Filippini,
Chairman of the Privacy First Foundation
Principles of our democratic constitutional State are still very relevant
‘‘Your choice in a free society’’ is the slogan of the Privacy First Foundation. Privacy First has defined its principles on the basis of universal human rights and our Dutch Constitution and is reputed for professional and, if necessary, legal action in line with our free constitutional State. The mere fact that Privacy First exists, means that in recent years the aforementioned principles have come under increasing pressure. We base our (legal) actions and judgements on thorough fact-finding, to the extent possible in our working area.
‘The Netherlands as a secure global pioneer in the field of privacy’, that’s our motto. This country should also serve as an example of how to use technology whilst maintaining the principles of our open and free society. This can be achieved through legislative, executive and IT infrastructures, starting from privacy by design and making use of privacy enhanced technology.
Whereas the industrial revolution has environmental pollution as a negative side effect, the information revolution has the ‘pollution of privacy and freedom’ as an unwanted side effect.
Therefore, the question is how to preserve the basic principles of our democratic constitutional State and how to support new structures and services towards the future. As far as we’re concerned, these basic principles are neither negotiable nor exchangeable. Yet time and again we see the same incident-driven politics based on the misconceptions of the day strike at times when the constitutional State is at its most vulnerable and cannot defend itself against the emotional tide of the moment.
Paris as yet another excuse to pull through ‘new’ laws
Various politicians feed on the attacks in Paris and tumble over one another to express Orwellian macho talk, taking things further and further in legislative proposals or in emotional speeches characterized by belligerence and rhetoric. And it’s always so predictable: further restraining existing freedoms of all citizens instead of focusing further on the group of adolescents (on average, terrorist attackers are between 18 and 30 years old) that intelligence agencies already have in sight. Instead of having a discussion about how intelligence agencies can more effectively tackle the already defined group that needs to be monitored and take preventive measures in the communication with and education of this target group, the focus too easily shifts to familiar affairs whereby necessity, proportionality and subsidiarity are hard to find.
So in the meanwhile we’ve witnessed the prolonged state of emergency in France, the far reaching extension of powers of the police, the judiciary and intelligence services (also to the detriment of innocent citizens), extra controls in public space, the retention of passenger data, etc., etc. All this apparently for legitimate reasons in the heat of the moment, but it will be disastrous for our freedom both in the short as well as in the long run. In this respect the blurring definition of the term ‘terrorism’ is striking. Privacy First focuses on government powers in relation to the presumption of innocence that citizens have. We’re in favour of applying special powers in dealing with citizens who are under reasonable suspicion of criminal offences and violate the rights of others with their hate and violence. In fact, that’s exactly what the law says. Let’s first implement this properly, instead of introducing legislative proposals that throw out the baby with the bathwater.
The governments is committed to impossible 100 per cent security solutions
What often strikes me in conversations with civil servants is the idea that the government should provide 100 per cent solutions for citizens and applies a risk exclusion principle. This leads to a great deal of compartmentalization and paralyzation when it comes to possible government solutions in the area of security. Technology-based quick fixes are adhered to by default, without properly analyzing the cause of problems and looking at the implementation of existing legislation.
The government way of thinking is separate from citizens, who are not trusted in having legal capacity and are regarded as a necessary evil, as troublesome and as inconvenient in the performance of the government’s tasks. The idea that the government, serving its citizens, should offer as high a percentage as possible but certainly not a 100 per cent security (the final 10 per cent are very costly on the one hand and suffocating for society on the other) is not commonly shared. No civil servant and no politician is prepared to introduce policies to maintain an open society today (and 50 years from now) that entail any risk factors. However, in reality there will always be risks in an open society and it should be noted that a society is not a matter of course but something we should treat with great care.
Here in the Netherlands we’ve seen other forms of government before: from rule by royal decree to a bourgeoisie society and an actual war dictatorship. Every time we chose not to like these forms of society. What could possibly be a reason to be willing to go back to any of these forms and give up our freedoms instead of increasing them and enforcing them with technology? Especially in a society that has high levels of education and wherein citizens show to be perfectly able to take their own decisions on various issues. We hire the government and politics as our representatives, not the other way around. However, we’re now put up with a government that doesn’t trust us, is only prepared to deliver information on the basis of FOIA requests and requires us to hand over all information and communications about us and our deepest private lives as if we were prima facie suspects. That puts everything back to front and to me it embodies a one way trip to North Korea. You’ll be more than welcome there!
Political lobby of the industry
The industry’s persistence to overload the government and citizens with ICT solutions is unprecedented. Again and again here in the Netherlands and in Silicon Valley the same companies pop up that want to secure their Christmas bonus by marketing their products in exchange for our freedom. We’re talking about various electronic health records like the Child record and the Orwellian and centralized electronic patient record, the all-encompassing System Risk-Indication database, travel and residency records, road pricing, chips in number plates and cars, so-called automated guided vehicles (including illegal data collection by car manufacturers), number plate parking, automatic number plate recognition cameras, facial recognition in public space and counter-hacking by government agencies while voting computers are back on the agenda. Big Data, the Internet of things, the list goes on.
With huge budgets these companies promote these allegedly smart solutions, without caring about their dangers for our freedom. It’s alienating to see that the reversal of legal principles is creeping in and is being supported by various government and industry mantras. It’s as if a parasitic wasp erodes civil liberties: the outside looks intact but the inside is already empty and rotten.
From street terrorism to State terrorism
As indicated above, the information revolution leads to the restriction of freedom. It’s imperative to realize that after 4000 years of struggle, development and evolution we have come to our refined form of society and principles that are (relatively) universal for every free citizen. Just as most of us are born out of love, freedom and trust, to me these are also the best principles with which to build a society. We’re all too familiar with societies founded on hate, fear and government control and we have renounced them not so long ago as disastrous and exceptionally unpleasant. At the expense of many sacrifices and lives these principles have been enshrined in treaties, charters and constitutions and are therefore non-negotiable.
It’s high time to continue to act on the basis of these principles and make policy implementation and technology subordinate to this, taking into account the people’s needs and their own responsibility. In my eyes, a civil servant in the service of the people who places security above everything else, is nothing more than a State terrorist or a white collar terrorist who in the long term causes much more damage to our constitutional State and freedom than a so called street terrorist. The government and industry should have an immediate integrity discussion about this, after which clear codes can be introduced for privacy-sustainable governing and entrepreneurship.
Towards a secure global pioneer in the field of privacy
Privacy First would like to see government and industry take their own responsibility in protecting and promoting the personal freedom of citizens and in so doing use a 80/20 rule as far as security is concerned. By focusing on risk groups a lot of money and misery can be saved. Exceptions prove the rule, which in this case is a free and democratic constitutional State and not the other way around. Say yes to a free and secure Netherlands as a global pioneer in the field of privacy!
"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."
Today the Privacy First Foundation and three other public interest groups as well as a number of Dutch individual users of Facebook, WhatsApp and Instagram request Mark Zuckerberg to join the public debate following the landmark Schrems-judgment of the European Court of Justice.
On 6 October 2015, the European Court of Justice invalidated the Safe Harbour Decision, which was the basis for Facebook’s transfer of personal data from the European Union to the United States. The Grand Chamber of the Court found that the legislation of the United States fails to ensure a level of protection essentially equivalent to that guaranteed in the legal order of the European Union. The NSA has access to Facebook content of users from the European Union, without any judicial redress being available to them. The Court held that this compromises the essence of the fundamental right to privacy. These issues have not been resolved yet.
Following the judgment, Facebook continued the transfer of personal data from the European Union to the United States. Bas Filippini of Privacy First says: ‘Absent an adequate level of protection in the United States, the continued transfer of personal data is clearly incompatible with European data protection laws. Such transfer violates the rights of millions of individuals. If this is not resolved shortly, we will initiate legal action.’
To date, Facebook has been remarkably absent in the public debate that followed this landmark judgment. Ton Siedsma of Bits of Freedom says: ‘We invite Facebook to publicly engage in a meaningful and transparent dialogue aimed at finding a solution, and to pressure the authorities to find such solution. Facebook is invited to publicly share its current and intended policies and practice on data transfer.’
Today, Facebook was summoned to come up with an adequate solution ultimately by 15 January 2016. If it fails to do so, civil rights groups and a number of Dutch individuals will request the Court in The Hague to grant an injunction ordering Facebook to immediately cease the transfer of personal data to the United States. This pertains to all services of Facebook, including WhatsApp and Instagram.
‘As long as the United States fails to provide an adequate level of protection against mass surveillance, personal data may not be transferred to the United States. Taking Facebook to court emphasizes the urgency of resolving this issue.’ says Jelle Klaas of the Public Interest Litigation Project of NJCM, the Dutch section of the International Commission of Jurists. ‘Our goal is not to put the screens of millions of users to black, but to enhance the current level of privacy protection. Hopefully, a solution can be found shortly by the legislators.’
Click HERE for our entire letter of summons to Mark Zuckerberg (pdf).
Update 21 January 2016: shortly before the deadline Facebook responded to our letter of summons by fax, click HERE (pdf). According to Facebook, there is still a suitable legal basis for the transfer of personal data from the EU to the US, despite the invalidity of Safe Harbour. Privacy First et al. contest this and have today sent a response to Facebook, click HERE (pdf).
In the discussion about a newly proposed surveillance bill in England, Facebook, following our summons letter, has made it publicly clear that:
“Governments should not be able to compel the production of private communications content absent authorization from an independent and impartial judicial official. (...) Surveillance laws should not permit bulk collection of information. The principles require that the Government specifically identify the individuals or accounts to be targeted and should expressly prohibit bulk surveillance.”
However, it is precisely these aspects where, according to the European Court of Justice, the legal protection in the US is inadequate. In our letter of this afternoon, Privacy First et al. have therefore requested Facebook to present their standpoint also in the debate about mass surveillance in the US. Negotiations about this issue are currently ongoing between the EU and the US. It would be good if Facebook gets involved in this debate, in line with the standpoint it voiced in relation to the English legislative proposal.
If in the short term a solution will not be found for the fundamental privacy issues the European Court of Justice has identified, Privacy First et al. will consider bringing interim injunction proceedings before the district court of The Hague.
Column by Bas Filippini,
Privacy First chairman
The Dutch police is currently running a pilot with Radio Frequency Identification (RFID)-chips in license plates. According to an internal report, fraud with license plates is alleged to be a big problem. A chip which is compulsory for every motorist and which can be read from a distance through a 'read-out portal' at all times on public roads, would supposedly be THE solution. However, Privacy First perceives the setting up of a national control system to track all movements in public space of all 17 million Dutch citizens as a great danger to society. Privacy First finds a compulsory spychip disproportional and unfit for a decent democracy under the rule of law.
A comprehensive electronic control system
Enquiries by Privacy First reveal that the license plate chip is part of a much larger plan to equip all roads in the Netherlands with so-called 'portals' with measurement equipment. These portals would record all cars 24 hours a day and thus the movements of all 17 million citizens in public space. The Dutch Bicycle and Automobile Industry (RAI) Association strongly recommends the use of such a chip in a recently leaked report. Moreover, new regulations, which make chips inside cars compulsory alongside license plate chips, are being prepared by European Parliament. According to the basic concept, over 60 details would be recorded and stored in the European database EUCARIS. The chip should enable immobilizers as well as a digital license plate database, online license plate requests, a European general periodical car inspection and could eventually grow into a European system for travel and residence rights and taxes.
For the time being, the project is traded as a solution for identity fraud and license plate related crimes in order to get citizens 'aboard'. However, in Privacy First's eyes the system is yet another attempt to be able to record citizens in public space, either through the public transport chip card or chips in license plates and/or cars. A license plate chip for all citizens as if it were an ankle bracelet is a dogged principle in the current control oriented way of thinking by the Dutch government and now the European Parliament, too. Which role do Dutch lobbyists outside Dutch parliament play in order to introduce these chips from Dutch manufacturer NXP in all European license plates on the basis of a Europe measure, or, in other words, by way of a political U-turn? Privacy First thinks it's high time for some serious journalistic research into this.
Current license plate issues: facts or suggestions?
Upon enquiry into the real problem, none of the authorities have been able to provide any clarity about the presupposed 40,000 cases of fraud with license plates. Even though it's important for citizens to know if there's a problem, and how substantial this problem is, the figure cannot be confirmed. Therefore, the question is raised whether it's legally justified to introduce such a system. Even in case of an estimated 40,000 license plates (a mere 0.5 per mil of the total) it's dubious whether the privacy of the entire society should be sacrificed. It's also altogether unclear how high the costs of such a system would be, and how high the gains in respect of the current alleged costs of identity fraud and license plate related crimes.
Are there no alternative solutions to 'the problem'? From a recent letter from the Dutch minister of Security and Justice, Ard van der Steur, it emerges that fraud with license plates occurs less frequently already due to measures such as the controlled online management and issuing and returning of license plates, requirements for recognized manufacturers and laminators (laminate code) as well as the obligation to report stolen or lost blank plates or license plates that have not yet been issued. Moreover, in 2000, the system of duplicate codes on license plates was introduced. Furthermore, faulty license plates are entered in the database for Automatic Number Plate Recognition (ANPR) control.
Whether it concerns black boxes, chips for theft prevention in (as of yet only more expensive) cars, eCall for crash analyses (also manufactured by NXP), dashcams, speed checks or the network of ANPR cameras, time and again Privacy First sees a pattern whereby the Dutch government tries to turn the complete recording of travel behaviour of citizens into reality. Now we're about to witness a spychip in every license plate and in every car, through undemocratic EU law – the ICT industry lobbied a number of MEPs in order to circumvent national parliaments – and the central database EUCARIS.
Reasons to opt for free choice and very selective use of a passive chip
Privacy First sees many reasons to not give a control infrastructure the go-ahead:
• A lack of necessity due to the absence of concrete figures regarding the 'alleged problem' and the availability of alternative solution-paths and measures, some of which have already been introduced.
• A complete lack of a cost-benefit analysis of a control infrastructure. The only one benefitting from the system in the short term is the chip manufacturer: in the future, chip manufacturer NXP will spy on you alongside the NSA! Under American surveillance legislation that is.
• The alleged problem is not commensurate with the measure, which is entirely disproportional and in breach of Article 8 ECHR. In the fight against identity fraud with license plates, a passive registration chip suffices and citizens should be able to choose freely whether or not they want to have a RFID license plate.
• The system will enable real-time identification, monitoring and recording of all citizens, including lawyers, journalists, politicians, activists – a very serious privacy infringement
• A central infrastructure and central data storage are particularly susceptible to fraud. If criminals get access to databases containing all the travel and residency data of cars and people in the Netherlands and the rest of Europe, all floodgates will be opened.
• There is a risk of function creep. The tax authorities, police and other law enforcement agencies already have real-time access to systems that have been intended for entirely different purposes, think of systems related to car parks and speed checks.
• Eventually a system like that could be deployed to burden citizens even more in various ways, such as road pricing and other travel & residency taxes and sanction systems, something that is perhaps the underlying thought of this draconian measure. Meanwhile ANPR cameras are used to fine drivers of old diesel cars in inner cities. What's next?
• Permanently recording citizens in public space will lead to self-censorship and an 'apology society' in which citizens have to have an alibi all time to explain what they were doing in a given location and why they were there. Citizens are already pestered by the police and authorities as a result of their travel behaviour – complaints about this reach Privacy First ever more often.
• Finally, an infrastructure like this affects our constitutional democracy by inverting the legal principle that there should be a reasonable suspicion of a criminal offence to be tracked: every citizen would be considered a potential suspect and would be continuously spied on.
An over-zealous control oriented way of thinking by a distrustful government
The policies of the Dutch government are tenaciously moving in one direction only. New technological gadgets are mandatorily deployed to record all citizens and central systems are subsequently linked together. After that, a flawed law and its implementation are being proposed and finally there are talks with privacy organizations and guileless citizens, who are left behind in an electronic prison. Nowadays Big Data, data mining and profiling are the magic words in all government departments. It all concerns 'OPD' (other people's data) anyway, very convenient indeed. In this case we're talking about equipping each car with three chips and implementing and maintaining a comprehensive ICT network on all roads, a market potentially worth billions of euros. And in the relationship that is then being formed between the public and the government, the latter is a distrustful partner that wants to know who the former is communicating with and what its travel movements look like. It also wants to dispose of systems with which errors can be checked, but in the worst case, it deals carelessly with all the data it collects. Such a relation, based on mistrust, certainly isn't sustainable.
The Netherlands, a global pioneer in the field of privacy
Time and again people forget: it's the legitimate task of the government to protect and promote the privacy of its citizens! Privacy First wants the Netherlands to become a global pioneer in the field of privacy with advanced technologies, based on the principles of our constitutional democracy and independent of the misconceptions of the day and our incident-driven political system. After all, this is about a fundamental turnaround in the relationship with the public, something Privacy First is opposed to. We therefore challenge politics, industry and science to turn the Netherlands into THE nation that is at the vanguard of privacy matters while maintaining security, and not the other way around!