At the end of this summer our colleagues from Bits of Freedom will once again be organizing the annual Big Brother Awards. Below are our nominations for the biggest Dutch privacy violations of the past year:

  1. Automatic Number Plate Recognition plans from Minister Opstelten
    If it’s up to the Dutch Minister of Security and Justice, Ivo Opstelten, the travels of every motorist in the Netherlands will soon be stored in a police database for four weeks through automatic number plate recognition (ANPR) for criminal investigation and prosecution purposes. This means that, in the view of Mr. Opstelten, every motorist is a potential criminal. Privacy First deems this proposal absolutely disproportional and therefore in breach with the right to privacy as stipulated under Article 8 of the European Convention on Human Rights. In case Dutch Parliament accepts this legislative proposal, Privacy First will summon the Dutch State on account of unlawful legislation in violation with the right to privacy; see http://www.privacyfirst.eu/focus-areas/cctv/item/580-every-motorist-becomes-potential-suspect.html
  2. Proposal for hacking scheme from Minister Opstelten
    A second miserable plan from Minister Ivo Opstelten is to authorize the Dutch police force to hack into your computer and to oblige citizens to decrypt their encrypted files for the police. In the view of Privacy First this plan, too, is entirely in breach with the right to privacy, since it’s unnecessary and disproportional. Moreover, the proposal contravenes with the ban on self-incrimination (nemo tenetur). The proposal will lay the basis for future abuse of power and forms a typical building block for a police State instead of a democratic constitutional State. For our main objections, see http://www.privacyfirst.eu/focus-areas/law-and-politics/item/599-privacy-first-objections-against-opstelten-hacking-scheme.html.
  3. License plate parking
    As of late, in an ever greater number of Dutch cities (among which Amsterdam) license plate parking is becoming compulsory. Privacy First stands up for the classical right of citizens to travel freely and anonymously in their own country. The right to park anonymously is a part of this. License plate parking clearly disregards these rights. Moreover, it leads to function creep in breach with the right to privacy. The prime example here is the already proven abuse of parking information of lease drivers by the Dutch tax authorities; see http://www.nrc.nl/nieuws/2013/07/29/privacywaakhond-het-servicehuis-parkeren-overtreedt-de-wet/ (in Dutch).
  4. Highway section controls
    Section speed checks on Dutch highways make that the journeys of motorists are continuously being monitored. This forms a massive infringement of the right to privacy. Such an infringement requires a specific legal basis with guarantees against abuse. Moreover, function creep is just around the corner; this already becomes obvious from the current plans of Dutch Minister Opstelten to soon use all highway speed cameras for automatic number plate recognition (ANPR) for investigation and prosecution purposes of a whole range of criminal offences as well as the collection of outstanding fines, tax debts, etc.  
  5. Drones
    Besides the ‘usual’ cameras in neighbourhoods, shops, stations, above highways etc., citizens are increasingly – and almost unnoticed – being spied upon by flying cameras: so-called drones. The government does this (mainly the police) and so are private parties, yet without any sufficient legislation. Because of this the privacy risks and the likelihood of an accident are enormous. Privacy First therefore pleas for a moratorium on the use of drones until proper national legislation is put in place. Furthermore, drones should only be allowed to be used by the government in exceptional cases, for instance in disaster situations or for the investigation of suspects of very serious crimes, and only in case no other adequate means can be deployed. For private parties a license system is to be introduced with strict supervision and enforcement. Moreover, every drone is to be equipped with a transponder that is publically cognizable. 
  6. Police Taser weapons
    In September 2012 it became known that Dutch Minister Opstelten was planning to equip the entire Dutch police force with Taser weapons. In the view of Privacy First, the use of Taser weapons can easily lead to violations of the international ban on torture and the related right to physical integrity (which is part of the right to privacy). Taser weapons lower the threshold for police violence and hardly leave behind any external scars. At the same time they can inflict serious physical damage and mental harm. In conjunction with the current lack of firearms training for Dutch police officers, this produces serious risks for the Dutch population. In May 2013 the Dutch government had to justify itself over Opstelten’s plans in front of the UN Committee against Torture in Geneva; see http://www.privacyfirst.eu/focus-areas/law-and-politics/item/595-dutch-taser-weapons-on-agenda-of-un-committee-against-torture.html. Nevertheless, for the moment Opstelten’s intentions seem to be unchanged...
  7. Electronic Health Record
    In April 2011 the introduction of a Dutch national Electronic Health Record (Elektronisch Patiëntendossier, EPD) was unanimously binned by the Dutch Senate due to privacy objections and security risks. However, the national introduction of almost the same EPD was subsequently worked towards along a private route and this included the exchange of medical data through a National Switch Point (Landelijk Schakelpunt, LSP). This will by definition lead to 'function creep by design' instead of privacy by design. The digital ‘regional walls’ in and around the LSP will easily be circumvented or removed. Therefore the entire system can take on its old central form again at any given moment in the future, with all the privacy and security risks this entails. Furthermore, the current layout is characterized by generic instead of specific permission of the patient to share medical data with healthcare providers (and future third parties). This constitutes an imminent danger for the medical privacy of citizens as well as the professional confidentiality of medical specialists.
Published in Law & Politics

The Dutch Ministry of the Interior is currently conducting an assessment of the fundamental rights situation in the Netherlands. Later this year this will probably result in a report called ‘De Staat van de Grondrechten’ (‘The State of Fundamental Rights’) and an accessory entitled ‘Nationaal Actieplan Mensenrechten’ (‘National Human Rights Action Plan’). In this context the Ministry recently requested input from several NGOs, among which Privacy First. Below is our advice:

Top 7 of issues that deserve a place in the State of Fundamental Rights and the National Human Rights Action Plan:

1. Active adherence to as well as protection, fulfilment and promotion of the right to privacy

Clarification: privacy is both a Dutch constitutional right as well as a universal human right. As with all human rights, the Dutch government accordingly has the obligation to 1) respect, 2) protect, 3) fulfil and 4) promote the right to privacy through proper legislation and policy. However, since '9/11' there have almost solely been made restrictions to the right to privacy, instead of enhancements of it. This constitutes a violation of the above-mentioned general duty to actively fulfil the right to privacy. The same goes for related rights and principles such as the presumption of innocence and the ban on self-incrimination (nemo tenetur). 

2. Constitutional review

Clarification: the Netherlands is only familiar with constitutional ‘‘review’’ by civil servants and members of the Dutch House of Representatives when it comes to the development of new legislation. Unfortunately there is no Dutch Constitutional Court and, oddly enough, constitutional review of formal legislation by the judiciary is outlawed in the Netherlands. It is partly on account of this that the Dutch Constitution has become a dead letter over the last decades. It is therefore recommended to create a Constitutional Court as soon as possible and to abrogate the ban on constitutional review.

3. Collective legal means

Clarification: owing to a development of legal restrictions within the case law of the Dutch Supreme Court, over the last decades it has become increasingly difficult for foundations and associations to legally defend the social interests they advocate for through the collective right to action (Article 3:305a Dutch Civil Code and Article 1:2 paragraph 3 Dutch General Administrative Law Act, both links are in Dutch). Because of this the effective and efficient functioning of the Dutch constitutional State and legal economy have come under severe pressure. It is therefore recommended for the government to actively respect, protect and fulfil the collective right to action. For instance by no longer instructing the State attorney to plea for the inadmissability of foundations and associations in relevant lawsuits. Moreover, the ban on direct appeal against generally binding regulations (Article 8:3 Dutch General Administrative Law Act, in Dutch) is to be abrogated.

4. Voluntary instead of compulsory biometrics

Clarification: the premise in a healthy democracy under the Rule of Law should be that citizens may never be obliged to cede their unique physical characteristics (biometric personal data) to the government or the business sector. After all, this constitutes a violation of the right to privacy and physical integrity. Moreover, within companies, service providers, employers, etc. this leads to unfair trading practices. With the planned introduction of an ID card without fingerprints, in this area the Dutch government is taking a first step in the right direction. In line with this, we advise the Dutch government to plea at the European level for a passport with voluntary instead of compulsory taking of fingerprints.

5. Anonimity in public space

Clarification: the right to be able to travel anonymously and not to be spied upon has become increasingly illusory in recent years, especially through technological developments such as public transport chip cards, camera surveillance, cell phone tracking, etc. Both the government as well as the business sector are obliged to actively reinstate, protect and fulfil the right to privacy in terms of anonymity in public space through the introduction of public transport chip cards that are truly anonymous (privacy by design), the abrogation of camera surveillance unless strictly necessary, the development of privacy-friendly mobile telephony and apps, etc. For all the legislation and policies in this field, privacy, individual freedom of choice, necessity, proportionality and subsidiarity are to be leading principles.

6. Privacy by design

Clarification: all privacy-sensitive information technology is to comply with the highest standards of privacy by design. This can be achieved through the use of privacy enhancing technologies (PET), among which are state-of-the-art encryption and compartmentalization instead of centralization and the coupling of ICT. At the European level this is to become a strict legal duty for governments as well as the business sector, with active supervision and enforcement in this area.

7. Privacy education

Clarification: in terms of human rights education the Netherlands is threatening to become a third world country. In the long run this puts the continued existence of our democratic constitutional State at stake. It equally puts the right to privacy in danger. A privacy-friendly future begins with the youth of today. To that end privacy education is to become compulsory in primary, secondary and higher education. The government should play an active role in this.

Published in Law & Politics

Earlier this year the Dutch Minister of Justice and Security Ivo Opstelten came up with the miserable plan to authorize the Dutch police force to hack into your computer (both at home and abroad!) and to enable the police to demand that you decrypt your encrypted files in the presence of a policeman and obediently hand them over to the State. In the context of an online consultation (in Dutch), Privacy First notified to the Minister that it has a number of principal objections against his plans:

Your Excellency,

The Privacy First Foundation hereby advises you to withdraw the legislative proposal ‘enforcement of the fight against cybercrime’ on the basis of the following eleven principal grounds:

  1. In our view, this legislative proposal forms a typical building block for a police State, not for a democratic constitutional State based on freedom and trust.
  2. The Netherlands has a general human rights duty to continuously fulfil the right to privacy instead of restricting it. With this legislative proposal the Netherlands violates this general duty.      
  3. This legislative proposal is not strictly necessary (contrary to possibly being ‘useful’ or 'handy') in a democratic society. Therefore the legislative proposal is in breach of Article 8 of the European Convention on Human Rights.
  4. Moreover, this legislative proposal violates the prohibition of self-incrimination (nemo tenetur se ipsum accusare).
  5. Function creep is a universal phenomenon. This will also apply to this legislative proposal, which will form the basis for future abuse of power.
  6. This legislative proposal puts the relationship of trust between the Dutch government and the Dutch people to the test. This will lead to a chilling effect in Dutch society.
  7. Through this legislative proposal age-old assets such as freedom of the press and the protection of journalistic sources, whistleblowers, freedom of speech, free information gathering, freedom of communication and the right to a fair trial are put under severe pressure. This is detrimental to the dynamics within a free democratic constitutional State.
  8. This legislative proposal and the accompanying technology will be imported and abused by less democratic governments abroad. Therefore the legislative proposal forms an international precedent for a worldwide Rule of the Jungle instead of the Rule of Law.
  9. As of yet the legislative proposal lacks a thorough and independent Privacy Impact Assessment.
  10. This legislative proposal stimulates suboptimal (i.e. crackable by the government, because otherwise illegal?) instead of optimal (‘uncrackable’) ICT security.
  11. Fighting cybercrime demands multilateral cooperation and coordination instead of unilateral panic-mongering as is the case with this legislative proposal.

Yours sincerely,

The Privacy First Foundation

Published in Law & Politics
Friday, 14 June 2013 16:59

Big Brother as a new form of society?

Shocking news reached us last week from the United States regarding the eavesdropping scandal that involves the US government. The digital state terrorism under Obama Bin Laden (the difference is really just a mere letter) has only been further institutionalized in his terms of office and undermines the basis of the democratic constitutional state inside and outside of America. Everyone’s a suspect, massive data storage and then continuous, real-time profiling of every citizen, in particular the citizens and organizations the governments dislikes. ‘’Just trust us, we don’t actually trust you.’’ One-sided transparency, citizens without any form of privacy, the government shielded by so-called state security protocols and always at war with an unknown enemy, so ‘’everything is permissible‘’.

  • A democracy is characterized by administrative transparency and respect for the private life of citizens. Within a dictatorship things are exactly the other way around: transparency of private life and administrative secrecy are the norm. To what extent is America still democratic? Over there whistleblowers that represent fundamental rights and real patriots in the true sense of the word are portrayed as terrorists.
  • 29-year old Edward Snowden is committed to his own principles and is now forced to seek asylum far away from the United States.
  • After having revealed abuses by that same government, Julian Assange felt the need to flee to the Ecuadorian embassy in London where, by now, he’s been holed up for over a year.
  • Where are the days when such people got the credit they deserved? Not that long ago, during the Watergate Scandal, the American president had to resign. It also brings to mind George Orwell’s newspeak: simply turning everything around, denying, lying, deceiving. So here we have it: the government that sold "change" and "hope" to its own people and the world.

A few hopeful changes à la Obama:

  • Guantanamo Bay is still open and its prisoners have been held there for years without any form of fair trial and with no way out; secret courts are the norm.
  • Everywhere in the world, unwanted citizens and innocent citizens are pre-emptively eliminated without any form of trial, judicial process or evidence through the use of drones, which additionally violates the sovereign airspace of foreign states. In case a drone crashes, instead of apologizing for violating international law, the drone is ordered back in no uncertain terms.
  • By now hundreds of pilots are trained to fly drones and to kill "suspects" in a computer game-like way.
  • Echelon, Carnivore and other data-collection programs are now complemented by PRISM, in order to be able to create a "digital life file" of every citizen, used to analyze the past, the present and possibly future behavior and ways of thinking. In case these ways of thinking are not to the government’s liking, the words "terrorist" and "part of a criminal organization" are immediately proclaimed and a profiling program commenced. This shameless infringement of the right to a private life takes place under the guise of terrorism prevention.
  • Whereas in the past citizens under reasonable suspicion of a crime could be tracked on the basis of a judicial decision and whereas control was specifically aimed at foreigners in the home country, nowadays it’s every citizen’s turn without judicial interference and in the US, already 5 million officials of the State have access to such classified information. And the target within PRISM very clearly is the entire world and all (forms of) communication. Welcome to the new world! Data macht frei!
  • Now the Obama administration is in the possession of these data, they are directly abused as well, for example by not handing out permits or by carrying out extra tax controls on dissenting groups. For years Privacy First has warned of function creep when it comes to this kind of legislation and the execution thereof. In this respect the Patriot Act is the least patriotic law (newspeak) since the coming into existence of the US and is applied all the time to be infinitely abused by the government, also outside of the US.

This was just a brief overview of cases that have come to the surface. Privacy First is especially bothered by the lack of self-reflection and self-control that governments display. "Is it technically possible? Then let’s do it!"

Instead of having a democratic discussion and offering a content-related reaction including apologies, or instead of the people responsible resigning, an immediate attack is launched and a sideway discussion started, exactly similar to the Wikileaks Affair:  

  • Everything is inverted, the whistleblowers are terrorists and privacy fetishists who are actually weak and sensitive, characteristics that need to be eliminated immediately.
  • Immediately diverting the question away from the topic and focussing on the mistakes made within the organization with the aim to eliminate whistleblowers; how can it be these whistleblowers have not been detected earlier?
  • The subsequent phase is the stigmatization of the whistleblower, saying that more resolute action is needed to discourage other intelligent people with common sense and a democratic vision to undertake any such actions.
  • After that comes the stigmatization of those holding different views and the press; the disgraceful free press that dares to publish such information: there has already been a call to prosecute any press that collaborates with whistleblowers. An immediate counter attack and you don’t need to talk about the content, a very easy option!
  • It is allowed by law through the Patriot Act! Instead of calling this law into question when true patriots that are committed to principles reveal abuses.
  • Shamelessly asserting that nothing’s going on when information is shared without the permission of citizens from other countries, with the argument that it’s convenient and that the government knows what is good for citizens. And all of this from a line of thinking dominated by fear, without a privacy-friendly alternative.

Time and again the government evades the real debate about reinforcing the fundamental principles of the democratic society on the basis of faith, about stimulating individual responsibility of citizens and, where necessary, about modifying the system with technology in order to improve the democratic process. The US government, like many other governments, has totally gone out of its mind and has forgotten it serves the interests of its citizens and the democratic fundamental principles instead of the other way around.

Privacy First makes a call to all pressure groups and government institutions to have a broad debate in society about this; in this digital age we are in need of a concrete alternative for the organization of a democratic society in order to stop the explosive growth of government terror that targets innocent and defenceless citizens. In this way Western democracies rapidly become totalitarian dictatorships while our society turns into an "electronic concentration camp".

→ What difference is there still between a dictatorship or a single-party state like China and the big leader of the free Western world, the US? That they are capitalistic societies?

→ What meaning does the message of progress, faith and love still have on a model of society that offers a hopeful future to the fully participating citizen?

At the end of the day scaling up, distancing of citizens, negative messages on the basis of fear, suspicion and black and white thinking will not lead to a more pleasant society. Nevertheless these are everyday occurrences since 9/11. A few years ago Privacy First already decided to choose for a free and inspiring society that had been fought for for 2000 years and to draw a line in the sand for citizens. We pay tribute to the whistleblowers! Who’s next?

Bas Filippini,
Chairman of the Privacy First Foundation

Published in Columns
Saturday, 08 June 2013 21:23

Privacy First Annual Report 2012

Preserving freedom and privacy in the Netherlands has been Privacy First's mission since its founding in 2009. In our annual report of 2011 we outlined a positive change that has been ongoing since that time (despite resistance): privacy climbs ever higher on the social and political agenda. Whereas the attention reserved for privacy in the media increases, the privacy-awareness of citizens equally augments. In the meantime Privacy First has conquered a strong position in the Netherlands. Privacy becomes mainstream. Privacy is the new green! We are keen to elucidate this for you in our pdfannual report 2012!

Published in PR Downloads

Since September 2012, Dutch Minister Ivo Opstelten has been planning to equip the entire Dutch police force with Taser weapons. At the request of the Privacy First Foundation, the Dutch government will have to answer some tough questions about this before the UN Committee against Torture.

One of the most important and most ratified human rights treaties in the world is the 1984 United Nations Convention against Torture. Under this Convention, torture is prohibited under all circumstances. Anyone who is guilty of torture anywhere in the world is to be prosecuted or extradited. This also applies to civil servants, ministers, presidents and heads of State. The Netherlands has been a party to the UN Convention against Torture since 1988. Periodically, every country that has ratified the Convention is examined by the supervisory treaty body in Geneva: the UN Committee against Torture (CAT). This upcoming Tuesday and Wednesday it's the Netherlands' turn to come under CAT's scrutiny: on Tuesday the Netherlands will be cross-examined by the Committee on various issues, after which the Dutch delegation will come up with answers on Wednesday. Subsequently, the Committee will make a number of critical recommendations (''Concluding Observations'') to the Netherlands.

In preparation of the Dutch session, the Privacy First Foundation, the Dutch National Human Rights Institute (College voor de Rechten van de Mens) and the Dutch section of the International Commission of Jurists (Nederlands Juristen Comité voor de Mensenrechten, NJCM) have recently sent so-called 'shadow reports' about the Netherlands to the Committee in Geneva. Both Privacy First and NJCM emphatically raised the issue of Taser weapons for the Dutch police. Privacy First did so through a special letter to the Committee: click HEREpdf. In this letter Privacy First draws the Committee's attention to the intention of the Dutch Minister of Security and Justice Mr. Ivo Opstelten to soon supply every Dutch police officer with his/her own Taser weapon. (Currently 'only' the arrest teams of the Dutch police force are equipped with Taser weapons.) In the view of Privacy First, the use of Taser weapons can easily lead to a violation of the international ban on torture as well as the related right to physical integrity, which in turn is part of the right to privacy. Taser weapons lower the treshold for police violence and hardly leave behind any scars. At the same time Taser weapons can inflict serious physical damage and mental harm. In conjunction with the current lack of firearms training for Dutch police officers, this produces serious risks for the Dutch population. Therefore we have requested the Committee to critically examine the Netherlands about this and to advise against introducing Taser weapons for the entire Dutch police force. Last Friday, Privacy First was notified from Geneva that the UN Committee will indeed critically examine this issue. This week Privacy First will keep you up-to-date of the latest developments.

Update 13 May 2013, 23.00h: a livestream of the Dutch session can be viewed online HERE (Tuesday 10am-3pm, Wednesday 3pm).

Update 14 May 2013, 15.00h: Today the Dutch delegation in Geneva (under the chairmanship of the Dutch Permanent Representative to the UN) was critically questioned by the Committee on various issues, among which... Tasers. The Dutch answers will follow tomorrow afternoon at 15.00h. Below are the relevant parts both in text as well as in mp3:

Committee member Nora Sveaass (Norway): "I then want to bring the attention to something that I've been informed of, namely that the State [of the Netherlands] is planning on a pilot of using Taser weapons as a regular weapon within the police force. And the pilot is supposed to take place, I understand, the last half of this year, so it's probably just around the corner. This Committee has on many different occasions warned against the use of Tasers, both in special situations and especially as a regular weapon to all the police, as I understand the plans are. And there are a lot of reasons for this, I won't go into the detail, because these have been described both by this Committee and by a lot of others, because, first of all, health reasons, physical as well as psychological. So I would hope that you would rethink and perhaps change the decision of implementing a pilot and also doing it in practice."
Audio:

Committee member Fernando Mariño Menéndez (Spain): "I'm also concerned by the decision that we've heard about to generalize the use of Tasers by all regular police officers, as just referred to by Mrs. Sveaass, that the Tasers will be used as an [armament] for standard use across the Kingdom of the Netherlands. That's our understanding, perhaps we're wrong, perhaps there is a special protocol governing the use of Tasers. Our position as a Committee is that Tasers shouldn't be used at all. If they are to be used, and this seems to be dangerous, then they need to be used in very specific cases and properly regulated. We'd like to know what's happening in the Kingdom of the Netherlands."
Audio:


Update 14 May 2013, 16.45h: This afternoon Privacy First employee Vincent Böhre was interviewed about this topic on Dutch radio station FunX. You can listen to the entire interview (in Dutch) here:


Update 15 May 2013: This afternoon the Netherlands had the opportunity to answer the questions that were asked by the UN Committee yesterday. In the audio file below you can hear how the Dutch Permanent Representative to the UN in Geneva denies and downplays the Dutch plans concerning Taser weapons. For the Committee members this was no reason to tone down or withdraw their critical remarks made yesterday. Therefore, Privacy First expects the Committee to express sharp criticism on the Dutch Taser plans in its Concluding Observations that are soon to be issued. Tonight the Committee already published a press release about the Dutch session; click HERE.


Update 16 May 2013: An integral video registration of both session days of the UN Committee is online HERE. The Concluding Observations of the Committee about the Netherlands will follow on Friday afternoon 31 May 2013 (June 3rd at the latest), Privacy First was told by telephone from Geneva today.

Update 22 May 2013: as a result of the Dutch session before the UN Committee last week, Dutch opposition party D66 today has posed a series of critical Parliamentary questions to Minister Opstelten; click HERE (in Dutch).

Update 31 May 2013: As predicted earlier by Privacy First and as reported tonight by Dutch television news program EenVandaag, the UN Committee against Torture has issued a negative statement today about Minister Opstelten's plans to equip the entire Dutch police force with Taser weapons:

"The Committee is concerned about the pilot plan to be reportedly launched to distribute electrical discharge weapons to the entire Dutch police force, without due safeguards against misuse and proper training for the personnel. The Committee is concerned that this may lead to excessive use of force (arts. 2, 11 and 16). The Committee recommends to the State party, in accordance with articles 2 and 16 of the Convention, to refrain from flat distribution and use of electrical discharge weapons by police officers. It also recommends adopting safeguards against misuse and providing proper training for the personnel to avoid excessive use of force. In addition, the Committee recommends that electrical discharge weapons should be used exclusively in extreme limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons." (para. 27. Click HERE for the entire document.)

The Privacy First Foundation hopes that this negative stance by the UN Committee will lead to a reconsideration and withdrawal of the Dutch plans to equip every Dutch police officer with a Taser weapon. Privacy First also hopes that the announced pilot will not be executed.

 

Published in Law & Politics

From the response to Parliamentary questions (in Dutch) it emerged this week that there is no specific legal basis for the secret use of drones by police in the Netherlands. According to the Dutch Minister of Security and Justice Mr. Ivo Opstelten, the current use of drones for criminal investigation purposes is based on the general task of the police as described in Article 3 of the Dutch Police Act (Politiewet). However, this vague and brief provision was never designed for this purpose. Moreover, Article 8, paragraph 2 of the European Convention on Human Rights (ECHR) dictates that every governmental infringement on people's privacy has to be explicitly laid down in national legislation which is sufficiently accessible and foreseeable and contains guarantees against abuse (among which are privacy violations and 'function creep'). However, no specific Dutch legal basis for the use of drones by police exists yet, let alone a legal basis that would be sufficiently accessible and foreseeable and that includes privacy guarantees for Dutch citizens. The violation of people's privacy by the current use of drones is therefore in breach with Article 8 ECHR and hence unlawful.

Without a specific legal basis in accordance with Article 8 paragraph 2 ECHR, every police drone constitutes an inadequate means of criminal investigation that shouldn't be used. Therefore the use of such drones should be suspended with immediate effect. In individual criminal cases, it is up to the judge to exclude information gathered with police drones from legal proceedings as it concerns unlawfully obtained evidence.

Privacy First hereby makes an urgent appeal to the Dutch House of Representatives to institute a moratorium on the further use of drones. Such a moratorium should only be lifted after a broad democratic debate has taken place and the use of drones has been properly regulated. In case the current Dutch situation will continue to be politically tolerated, Privacy First reserves the right to enforce a moratorium in court.

Published in Law & Politics
Tuesday, 02 August 2011 14:06

Campaign: Municipality Guarantee Letter 2.0

Model Municipality Guarantee Letter 2.0

In case you are in need of a new Dutch passport or ID card even though you find it a problem having your fingerprints taken, you can protest against this and cover yourself against the possible consequences of how the Dutch government will deal with your personal data by using the letter below. You can download the Municipality Guarantee Letter for personal use in PDFpdfor in Word-format.

Privacy First has already filled in some possible objections in the model letter. However, you can alter or complete the letter to your own wishes.

At your request your municipality is obliged to accept this Municipality Guarantee Letter, according also to the Dutch National Ombudsman. See also the report about this in Dutch national newspaper De Telegraaf of 22 April 2010.

 

MODEL MUNICIPALITY GUARANTEE LETTER IN CASE OF A NEW PASSPORT OR ID CARD WITH FINGERPRINTS

REGISTER LETTER

Municipality [name of your municipality]
Attn [name of the mayor or the name of the authorised representative of the municipality]
[Address town hall]
[Postal code] [City]  

[Your place of residency], [Date]

Dear Sir/Madam [name of the mayor],

You, or one of your officials has stated that on account of the new Dutch Passport Act it is not possible for me to apply for a passport and/or ID card without me providing fingerprints. These fingerprints will be stored in an RFID-chip in my passport or ID card that can be read from a distance.  

I hereby protest against the taking of my fingerprints on the following grounds:

1) Having my fingerprints taken constitutes a violation of my human dignity. Fingerprints are to be taken of criminal suspects. Not of innocent citizens.
2) My fingerprints are, and remain, my property. The government has no say over this.
3) Current fingerprint technology (biometrics) does not work in 21-25% of cases. Going ahead with it is a waste of funds at the expense of citizens.
4) By having my fingerprints taken I risk becoming a victim of (biometric) identity fraud, for example after (the RFID-chip in) my passport or ID card has been stolen, lost or hacked into.

This situation constitutes an illicit restriction of my right to the protection of my private life as laid down in Article 8 of the European Convention on Human Rights. Therefore I only provide my fingerprints under protest of having to do so.

Moreover, I would like to point out to you that all actions carried out by the municipality with regard to my fingerprints have to comply with the rules of the Dutch Data Protection Act (Wet bescherming persoonsgegevens, Wbp).

I hereby request you to declare, by signing this letter, that the municipality has taken note of my objections and will only process my fingerprints in compliance with the Wbp. This implies, among other things, that the municipality:

1) will process my fingerprints in a fair and accurate way;
2) will not proceed to further process my fingerprints in ways incompatible with the purposes for which the fingerprints have been obtained (viz., the issuance of a passport and/or ID card);
3) will not provide my fingerprints to any third parties without my explicit prior approval;
4) will not store my fingerprints any longer than is necessary for the realization of the purposes for which the fingerprints have been collected or processed (viz., the issuance of a passport and/or ID card); and
5) will protect my fingerprints against any loss or any form of unlawful processing by means of suitable technical and organizational measures.

I would like to receive this signed letter five days from now at the latest at the address indicated below.

Nothing in this letter may be assumed to be a recognition of the right of the municipality to carry out the above-described actions with my fingerprints. The content of this letter does not restrict any of my rights, all of which are reserved. Furthermore, I would like to point out to you that in case the municipality will process my fingerprints without taking the Wbp into account, or in any other illicit way, the municipality is bound to reimburse any possible damage suffered by me as a consequence.

Yours sincerely,

 

Signed for agreement on behalf of the municipality,

Name:

 

Name:

Address:

 

Function:

Date:

 

Date:

Signature:

 

Signature:

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"Die niederländische Polizei hat seit 2009 in 132 Fällen Drohnen eingesetzt, um unterschiedliche Straftaten zu klären oder Lagebilder zu erstellen. Die Verfolgung von Fluchtautos mit Kameras und das Aufspüren von Cannabis-Plantagen mit Wärmekameras bildeten dabei die Mehrzahl der Einsätze. Dies geht aus Angaben des niederländischen Infrastruktur- und Innenministeriums hervor, das allerdings Details zu den Drohnen-Einsätzen verweigerte. Das findet der anfragende Abgeordnete Gerard Schouw von der Partei D66 untragbar: Der Drohneneinsatz müsse öffentlich kontrollierbar sein und eine rechtliche Grundlage haben.

Gegenüber dem niederländischen Programm von RTL erklärte Schouw, dass ohne genaue Auskünfte und Kontrollmöglichkeiten der Einsatz von Drohnen in einer Grauzone stattfinde. "Aus welcher Entfernung werden da unschuldige Bürger gefilmt? Niemand hat eine Ahnung, was da passiert."

Unterstützung erhielt Schouw von der niederländischen Datenschutzorganisation Privacy First. Deren Anwalt Vincent Böhre erklärte, dass die Kameraüberwachung mit Drohnen eine Überwachungstechnik ist, die nach dem niederländischen Recht nicht erlaubt sei.

Ähnlich äußerte sich der Jurist Leon Wecke von der Universität Radboud. "Wir werden überall von Kameras verfolgt. Nun sind es auch noch Drohnen, denen wir uns nicht bewusst sind." Dies sei eine Verletzung der Privatsphäre, erklärte Wecke gegenüber dem Internet-Nachrichten Nu.nl. Drohnen bedürften daher einer eigenständigen gesetzlichen Regelung, betonte Wecke. Zu den Drohneneinsätzen soll es in Arnhem, Amsterdam, Almere und Rotterdam gekommen sein. Wegen fortlaufender technischer Probleme soll die Amsterdamer Polizei ihre Drohnen inzwischen außer Dienst gestellt haben.

In Deutschland hatten zuletzt die Grünen auf einer Fachtagung über den Einsatz von Drohnen diskutiert und dabei über Polizeidrohnen ebenso wie über Militärdrohnen gesprochen. Die Videos dieser Tagung sind mittlerweile online verfügbar."

Source: Heise Online, 23 March 2013.

"The police are increasingly using unmanned aircraft in their efforts to track down criminals in the Netherlands, leading to MPs' questions about the privacy implications.

Drones - small helicopters equipped with cameras - are used to trace burglars and getaway cars as well as illegal marijuana plantations. For example, Harlingen borrowed two drones from the defence ministry last year after a spate of burglaries in the Frisian town.

Since 2009, drones have been used in at least 40 areas, the AD reported on Monday. In total, they were in the air on at least 132 different days.

Legality

D66 parliamentarian Gerard Schouw has asked the justice ministry to explain the implications of the use of drones on privacy.

'I understand they can be useful, but they need to have a basis in law,' he is quoted as saying by RTL news. 'How closely can innocent citizens be filmed. No-one has a clue what they are filming.'

Lawyer Vincent Böhre from the Privacy First foundation said the use of drones is illegal because the flights are not made public.

'It is a form of camera supervision which is not allowed under Dutch law,' he told the broadcaster. The use of drones also infringes European privacy laws, he said.

Amsterdam city council said earlier this year it had grounded its two €29,000 drones because of continuing technical problems."

Source: Expatica.com (Netherlands), 18 March 2013.

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