Personal data authority imposes penalty payment over privacy-invading waste card

Personal Data Authority imposes penalty payment on municipality of Arnhem for privacy violation with address-based waste cards 

Today, the Personal Data Authority (AP) announced that it is imposing an order for incremental penalty payments on the municipality of Arnhem ordering the municipality to stop processing personal data with address-based waste cards within one month. Data already collected must be deleted within two months.

Three years ago, the municipality of Arnhem introduced a system that processes personal data of all Arnhem households depositing residual waste in underground waste containers by means of address-specific waste passes. In this way, it registers WHERE (in which container), WHEN, HOW MUCH (number of rubbish bags) and by WHO (which household) residual waste is deposited.

Arnhem resident Michiel Jonker objected to this unnecessary registration, arguing several legal proceedings against both the municipality of Arnhem and the AP. Although the AP acknowledged in April 2017, as regulator, that there was a violation, it decided to tolerate the violation. After the judge ruled in Jonker's favour again on 13 July 2017, the AP is now still striking a enforcement action.

The AP's enforcement action should be seen primarily as standard-setting. The amount of the penalty (€10,000 every fortnight if the violation is not stopped, rising to a maximum of €50,000) is only a fraction of the costs incurred by the municipality of Arnhem over the past three years for the illegal system, and in that sense hardly a deterrent.

Mr Jonker's case is supported by Privacy First and sets an important precedent. In its reasoning for the enforcement decision, the AP stresses that personal data (in an objective sense) also exists when an individual's identity is indirect is traceable, through means that can be deployed by the responsible party (in this case the municipality) or by any other organisation or person.

Jonker: "That is a correct position that the AP is now taking, following European privacy law. Privacy First says the same thing all the time. In today's era of Big Data and profiling with statistical methods, all kinds of data can be used to identify someone. You have to take that into account when designing any system." Jonker is also pleased that the AP is now explicitly stating that the privacy violation affects many people. "It involves over 150,000 Arnhemmers." The AP's decision is also of great interest to all other Dutch municipalities with similar waste passes and other forms of waste registration.

Still, Jonker is not satisfied with the decision as a whole. "According to its decision on my objection, which I also received today, the AP still believes that there would still be a need for processing personal data after the introduction of Diftar (differentiated tariffs in waste collection). I have substantiated why this is not necessary even after the introduction of Diftar. But because the AP now does enforce in the period prior to Diftar, the question is whether it is currently possible for me to get an opinion from the court on the possible consequences of Diftar for citizens' privacy. This involves the legal question of 'litigation interest'. The municipality still wants to start collecting personal data when Diftar is introduced, the municipal 'peeping at citizens' is only temporarily interrupted for now, because the municipality and the AP cannot get out of it for a while. So, unfortunately, it looks like this is a matter of: to be continued."

Privacy First will be happy to keep you informed of the follow-up.

The text of the AP's entire enforcement decision reads HERE (pdf, 13 pp).

Media:
https://www.security.nl/posting/526408/AP+legt+Arnhem+last+onder+dwangsom+op+voor+gebruik+afvalpas
http://www.gelderlander.nl/arnhem-e-o/arnhem-riskeert-boete-voor-afvalpas~a0a3f8f6/
http://www.arnhem-direct.nl/berichten/autoriteit-persoonsgegens-dreigt-met-50-000-euro-boete/
https://www.rtlz.nl/algemeen/binnenland/gemeente-arnhem-op-vingers-getikt-om-volgen-bewoners-met-afvalpas.
https://radar.avrotros.nl/nieuws/detail/arnhem-moet-stoppen-met-afvalpas-vanwege-privacy-inwoners/
https://tweakers.net/nieuws/127903/autoriteit-persoonsgegevens-dwingt-arnhem-blijvend-te-stoppen-met-afvalpas.html
http://www.binnenlandsbestuur.nl/bestuur-en-organisatie/nieuws/afvalpas-landelijk-onder-de-loep-na-uitspraak.9568678.lynkx
http://www.vngnieuws.nl/nieuws/redactie/afvalpas-alsnog-dwangsom-voor-arnhem.

Update 4 August 2017: yesterday, Mr Jonker appealed to the District Court of Gelderland against (among other things) the AP's position that introduction of Diftar would still justify the processing of personal data. In doing so, Jonker stressed that, in view of the requirements of Article 8 ECHR (right to privacy) and legal certainty, he has a procedural interest in being able to challenge in court the AP's rejection of this part (concerning Diftar) of his enforcement request. Privacy First supports Jonker in this new case.

The Arnhem waste case is now leading to national unrest among municipalities and within the waste industry, witness for example this message at industry organisation NVRD. Privacy First's assessment is that numerous Dutch municipalities (as well as Arnhem) have been using privacy-invading waste cards and other forms of waste registration (including personal chips in containers) for years. For now, however, the AP refuses to actively investigate and enforce at other municipalities, as evidenced by, for example this current message at Interior. The AP now considers it up to municipalities to put their own house in order and introduce privacy-friendly waste policies. Privacy First hereby reiterates its earlier position: Dutch municipalities should offer their citizens a privacy-friendly alternative to a personal waste card, for example in the form of an anonymous waste card at no extra cost. If required, Privacy First is happy to advise municipalities in this regard.

Update 8 February 2018: Following the appeal filed by Mr Jonker on 3 August 2017, the Gelderland District Court is today considering whether the AP may limit its enforcement action to only the situation where Diftar has not yet been introduced. Mr Jonker believes that the AP should enforce even after Diftar has been introduced, in line with his enforcement request, on the grounds that also the introduction of Diftar does not create a need for any processing of personal data.

In the first hearing of this new round, the court is not yet considering the substance, but only whether Jonker has a "procedural interest" - see Jonker's pleading (pdf). On 26 January 2018, the AP informed the court that it had already rejected a request by the municipality of Arnhem to lift the enforcement measure on 22 December 2017. But the ground on which the AP rejected the municipality's request (Section 5:34 Awb) expires in August 2018. The reasons why the municipality asked for lifting so quickly, the AP has not yet been willing to tell Jonker. The court may ask about them. Jonker speaks of "unfortunately necessary legal skirmishes to prevent the AP from circumventing its enforcement duty as yet".

Update 13 June 2018: Arnhem municipality's new College of Mayor and Aldermen is abandoning the introduction of Diftar, and with it the introduction of a waste card, for the time being. This is evident from notice in De Gelderlander of 6 June 2018. The councillor in charge does not mention the privacy issue, but from an official progress report to the city council on 1 May 2018, it can be seen that Jonker's legal actions regarding privacy do play a role in the consideration made by the college of B&W. The Arnhem city council is expected to make a decision soon.

Update 20 March 2019: On 14 March 2019, the AP lifted the imposed order under periodic penalty again, paving the way for the municipality of Arnhem to resume processing personal data in waste collection after all. On 18 March 2019, Mr Jonker filed a notice of objection to this with the AP.

Jonker: "The municipality again wants to start processing personal data in waste collection without necessity, but to keep that data for a shorter period of time than last time. The municipality then calls this "a new circumstance". The AP obediently goes along with this, ignoring the arguments in my December 2018 view. There is no good reason to revoke the enforcement measure imposed. It was imposed for an indefinite period, as the court also pointed out in early 2018. There is still no legal basis, as this processing of personal data is not necessary for the municipality's statutory task of waste collection in the municipal territory. But apparently the AP wants to grant certain additional wishes of the municipality, despite the fact that the municipality does not clarify what the purpose of the data processing would be again this time. Is it about combating alleged but unproven "waste tourism"? Or about a new but as yet undeveloped plan to introduce Diftar (differentiated waste collection)? It is not clear. Apparently, the AP wants only one thing: to facilitate the wishes of the municipality at all costs, instead of enforcing the law."

Asked about his expectations for the way forward, Jonker said: "The importance of the case also lies in the precedent it sets for the future. At the moment, I can only object to the withdrawal of the enforcement order. But if the municipality starts actually invading privacy again, by locking the waste containers so that they can only be opened with address-specific waste passes, I will object again. For example, by submitting another enforcement request to the AP then. Then the whole circus will start again from scratch. That would again be a waste of taxpayers' money. That is why I hope the AP will come to its senses as a result of my objection. The AP must come to understand that if it does not act as a regulator/enforcer, but as an accomplice of organisations that want to process personal data without necessity, then the credibility of the new privacy regulation (AVG) will be lost in no time."

Update 6 August 2019: the municipality of Arnhem actually started the step-by-step resealing of waste containers for residual waste in May 2019. The municipality also wants to start closing the waste containers for plastic, metal and beverage packaging in the same way. By October, the municipality aims to have closed all waste containers. On 16 July 2019, the AP rejected Jonker's appeal against the lifting of the enforcement order. On 5 August, Jonker appealed this to the court, and also filed an application for injunctive relief in connection with that appeal.

Jonker: "The municipality is repeating itself. There is now essentially the same situation again as at the time of the court ruling in July 2017. The municipality, without demonstrating a need, has locked the waste containers so that they can only be accessed by users of an address-specific waste card that processes personal data. Only now these are kept for a shorter period of time. The only real difference is that the AP refused to start enforcement at the time, while the AP has now knowingly lifted an existing enforcement measure to pave the way for a resumption of the breach. And this even though the AVG has been in place since May 2018, which aims at more robust enforcement. So the AP is doing the opposite of what the AVG aims to do. This is slightly worse than the refusal in 2017. In my application to the interim relief judge, I cited the 2017 interim relief judge's ruling and asked for a suspension of the lifting order, just as the judge suspended the refusal order in 2017. We will see if the judge subscribes to the logic of my request."

Media:
Security.co.uk, 7 August 2019: Arnhem man again to court over municipal waste pass
Omroep Gelderland, 7 August 2019: Arnhem continues to 'play Big Brother' with residents' waste
Omroep Gelderland, 8 August 2019: This Arnhem man really does everything for his privacy
Tweakers, 8 August 2019: Arnhem man takes back to court over privacy-invading waste pass
Radio interview Omroep Gelderland, 8 August 2019:
{mp3}Omroep_Gelderland_8aug2019{/mp3}
Interview in NRC Handelsblad & NRC Next, 13 August 2019: 'Someone has to draw a line from time to time to protect citizens'

Update 19 August 2019: Mr Jonker's application for a preliminary injunction on the Arnhem waste pass will be heard on Thursday 29 August at 10:00h in Arnhem, Paleis van Justitie, Walburgstraat 2-4. Case number: ARN 19/4217.

Media:
Telegraph, 27 August 2019: Arnhem minima can earn from waste
Omroep Gelderland, 29 August 2019: Arnhem privacy fighter to court again, now over waste pass
RTL-Z, 29 August 2019: Another lawsuit over Arnhem municipality's waste passes
Gelderlander, 29 August 2019: Waste mess is not over: 'Arnhem created this problem itself'

Update 7 September 2019: On 5 September this year, the Gelderland District Court ruled pronounced on both the application for interim relief and the related appeal (the proceedings on the merits). The application and the appeal filed were both declared unfounded. The court allowed the privacy breach to continue, without the AP having to enforce it. The court found that, while the municipality's "public interest task" does not allow it to store personal data for days, it can store it for a while. The risk that this data might then, imperceptibly to the person taking out his rubbish, be registered somewhere else by means of software intervention anyway, the court finds irrelevant, because the court wants to assume how it should be on paper. The alternative of an anonymous waste card is not considered suitable by the court, because it cannot achieve all the control objectives the municipality has recently set itself.

Jonker: "The court, like the AP earlier, uncritically adopts the municipality's idea that because the municipality itself has set up a system of address-specific waste passes, it is therefore compelled to make those passes address-specific as well, in order to check whether each address-specific waste pass is still valid. This is circular reasoning, but the court apparently does not care. The court believes, as does the municipality, that this will prevent businesses from depositing their waste in the containers. But if the address-specific passes are anonymised again immediately after the containers are opened, as the municipality claims, Arnhem businesses can of course borrow a resident's pass with ease. This does show that the municipality will soon say that the address data should still be registered. But the court, the AP and the municipality are now jointly pretending that this is "not an issue". We see here that three government agencies are jointly putting the law and logic out of order. And that is just one example of arguments I have made, but which are completely ignored by the court. That has no place in a rule of law."

Asked if the General Data Protection Regulation (AVG) allows this, Jonker said: "The AVG can be interpreted in different ways. I have consistently argued that the AVG should be interpreted in line with the purpose of Article 8 of the ECHR, and in line with the European law requirement of a high level of privacy protection. The court apparently thinks otherwise. In this way, the AVG functions like a colander with two hundred holes. Every organisation that wants to process personal data plucks a general purpose from somewhere, for example a public interest task such as 'waste collection', or an unspecified, nice purpose such as 'security' or 'fraud prevention'. And then each organisation can make its own interpretation of how that is pursued, which is then justified with reference to that vague purpose. This is a licence for almost total arbitrariness in processing personal data. In this way, the AVG is reduced to a wash."

Jonker has decided to appeal, but also says he doubts its usefulness. "If the judiciary abandons reasonableness and only reasons from vested interests of fellow public authorities, then it is questionable whether further legal dialogue on the matter is meaningful. We already see that since the recent closure of the containers, illegal dumping of waste is on the rise again. If in fact the rule of law is not functioning adequately, perhaps civil disobedience is more effective. Other Arnhemmers may have noticed this a bit earlier than me. It seems less useful to me as an idealistic Mad Henkie to go wrangling with judicial authorities that do not take my arguments seriously anyway. Maybe the shore should turn the ship around. I haven't made up my mind on that yet and will think about it some more. I hold out for expert advice."

The court's ruling is published on rechtspraak.nl. Jonker said today in a private, further press release (pdf) announced his intention to appeal to the Council of State. He also decided to publish some procedural documents, namely his earlier appeal (pdf) and its subsequent reply (pdf) On the defences of the municipality and AP.

Media:
ANP, 6 September 2019: Arnhem container allowed to open with waste pass (also published at various dailies and other media outlets)
Gelderlander, 6 September 2019: Arnhem privacy advocate loses court cases: OV-chipkaart will not be questioned
Omroep Gelderland, 6 September 2019: Arnhem privacy fighter loses two court cases
Tweakers, 6 September 2019: Judge: AP need not act against NS and Arnhem waste pass
NRC.co.uk, 6 September 2019: Address-specific waste card Arnhem not in violation of privacy law
Security.co.uk, 7 September 2019: Privacy activist loses cases over waste pass and public transport chip card
Domestic Administration, 7 September 2019: Judge allows address-based waste pass Arnhem
Gelderlander, September 7, 2019: Privacy activist appeals ruling on Arnhem waste pass

Update 10 September 2019: Today, Jonker appealed to the Council of State. Click HERE for the public version of his appeal (pdf).

Update 31 July 2020: the municipality of Arnhem introduced a Diftar system with address-based waste passes in waste collection from 1 July 2020, while the municipality previously claimed that Diftar "played no role" in its request to the AP to lift the enforcement measure imposed. At the time (in 2018), it was allegedly only about "prevention of waste tourism". In response to this new circumstance, Jonker supplemented the grounds of its appeal on 25 July. Click HERE for the public version of this supplement (pdf).

Jonker: "This form of a Diftar system collects no less than 19 types of data on citizens, according to the municipality's privacy statement. This is an example of various forms of 'function creep', whereby an organisation will then use a system that was (supposedly) set up for one purpose for another purpose, and for a larger group of data subjects. Again, the municipality did not seek the consent of affected citizens (the data subjects) to the processing of personal data in question. Moreover, there is still talk of 'function creep by design'. Only in the appeal proceedings, in a text just before the court hearing, did the municipality casually indicate that Diftar had actually played a role after all. Earlier, therefore, it had not been telling the truth. The objective from the beginning had indeed been the introduction of Diftar as well. The court was silent on that in its ruling - nice and easy for the municipality. Hopefully, the Council of State will consider a serious and honourable handling of the statutory requirement of purpose limitation by the controller to be important."

It is not yet known when the appeal will be heard in court.

Update 17 November 2020: Arnhem city council has finally decided to hold an advisory referendum on a council proposal to reopen waste containers, which therefore also means that an address-specific waste card would no longer be needed when depositing waste. The referendum will be held at the same time as the House of Representatives elections, in March 2021. Following this decision, Mr Jonker supplemented his appeal again.

Jonker: "By deciding to hold a referendum on the closure of the waste containers, the municipal council, as the highest body of the municipality of Arnhem, has clearly indicated that the closure of those containers, and thus the processing of personal data on those containers, does not involve any necessity, but only optional policy. I thought it was important to bring that to the attention of the Administrative Law Division of the Council of State." 

Update 22 March 2021: On 17 March, at the same time as the parliamentary elections, the referendum on the waste pass and underground containers was held in Arnhem. A majority of 53.4 per cent of Arnhem voters rejected closing the containers and introducing a waste pass. The turnout was over 60%.

Jonker: "The result is clear. What interests me now is how the Council of State will deal with the appeal I filed. This, after all, involves a decision by the Personal Data Authority not to enforce because, according to the AP, there would be a "necessity" for locking the containers and processing the personal data. Now the people of Arnhem themselves, in a referendum decided on by the municipal council as the highest municipal body, are saying that there is no such need, and indeed that they do not want the measure. If the municipality indeed follows the result of the referendum, it is completely obvious that there was never any need for the personal data processing in question.

This is somewhat similar to the situation in 2017, when the interim relief judge concluded that there was no concrete prospect of legalisation of the unlawful processing of personal data. Then the containers had to be reopened and I was refunded the court fee I paid.

I expect that the Administrative Law Division of the Council of State will now reach a similar conclusion and order the AP to reimburse the court fees I paid (appeal and review).

In doing so, I do think it is important for the Council of State to clarify whether or not, in its view, there would have been a "necessity" if no referendum had been held, and if so, why? After all, with a view to my future legal certainty, I am interested in what the law says about this, and not just what political actors say about it. In a few years' time, the political cards may be shuffled differently again... After almost seven years, I do want to know where I stand."

Update 5 May 2021: the Administrative Law Division of the Council of State will hear the appeal at a hearing on 11 May 2021. Jonker will participate by video link. The Division has announced that consideration will be given to whether Jonker, following the outcome of the referendum, still has a procedural interest in the case.

Jonker: "I understand that the Division wants to pay attention to the issue of procedural interest. Do I still have an interest in a court ruling now that the people of Arnhem have declared themselves in favour of opening up the waste containers and thus against the address-specific waste pass, and the city council has announced its intention to implement it?

My answer to that is: yes, I still have a litigation interest. Firstly, because Arnhem politics is fickle. In the future, a subsequent city council may want to reintroduce the waste pass. After all, that has happened twice before. Moreover, the city council has already stated in publicity in April that it wants to discuss in the autumn the possibility, contrary to the referendum result, of closing the containers again and introducing a waste pass after all. Thirdly, it would obviously not be in keeping with the rule of law if, after seven years of legal battle, a municipality could evade a judge's verdict by temporarily withdrawing the plan and then putting it forward again later, after the court hearing. If that could be done, then citizens standing up for their fundamental rights would be sidelined, not only by the municipality but also by the courts. There would then be no legal certainty. I therefore expect the Administrative Law Division to recognise my litigation interest."

Update 14 May 2021: The Administrative Law Division of the Council of State heard the case at a hearing on 11 May. The hearing lasted over an hour, and journalist Rico Brouwer made an integral video recording of it. Afterwards, he interviewed Jonker.

The Potkaars.co.uk site features a summary of the hearing as well as the full recording and interview with Jonker: https://potkaars.nl/blog/2021/5/12/is-de-autoriteit-persoonsgegevens-hun-missie-vergeten-michiel-jonker-de-autoriteit-persoonsgegevens-en-dataminimalisatie .

Update 30 June 2021: Today, the Administrative Law Division of the Council of State ruling done:

The Council of State declared Jonker's appeal unfounded, on the central argument that the municipality of Arnhem has a great deal of "freedom" or "a certain amount of room" to set its own goals and choose the manner in which those goals are pursued as it sees fit. Such a goal need only "fit with" a task of general interest, with the municipality being allowed to interpret and fill in both that task and the self-chosen, "fitting" goal very broadly.

Another argument of the Council of State is that to justify an invasion of privacy, it is not necessary that a Dutch formal law requires such an invasion. Instead, the Council of State already considers it sufficient that the municipality says it is pursuing a goal with that infringement that is one of the possible ways of implementing a generally formulated law. It does not need to be demonstrated from the Council of State that the particular, specific interpretation of the law is also necessary. Moreover, such a law from the Council of State may also be "lower regulations", e.g. policy rules drawn up by the municipality itself. To this end, the Council of State reinterprets Article 10 of the Constitution, which, according to the Rvs, means that the condition "by or pursuant to the law" no longer needs to mean "by or pursuant to a Dutch law in the formal sense". In doing so, the Council of State may be following earlier case law of the Supreme Court, which had previously proceeded to this reinterpretation.

The principle of data minimisation enshrined in the AVG is overruled by the RvS in its ruling, arguing that the processing of "ordinary" personal data, such as an address, is not in itself always prohibited. In that context, the RvS is silent on the requirement in Article 5(2) AVG that the necessity of data processing must be provable.

Nor does the Council of State's data processing need to be effective in practice. Jonker's argument that the effectiveness of the system operated by the municipality has not been demonstrated in essential respects, and hence the necessity, is disregarded by the RvS and thus apparently not considered relevant.

Jonker: "I don't actually see this as a court ruling, but as a political ruling. If the Council of State had taken the intent of Article 8 ECHR, the AVG and Article 10 Constitution seriously, there would be consequences for all kinds of governments that have been violating privacy for years. Possibly the RvS is shying away from that. But in this way, the RvS keeps breaking down the rule of law in the longer term, by allowing governments to create fait accompli in practice at the expense of citizens' privacy. To avoid coming into conflict with the executive, the Council of State in this way legalises arbitrariness and, in my view, commits treason to the rule of law by doing so. The Council of State rewards it when Dutch governments approach their citizens in an authoritarian and arbitrary manner. However, the social contract between government and citizens requires the judiciary to be independent and faithful to the intention of the law. And thus also the courage to set limits on the executive. I do not see that required courage in this ruling."

Asked what he will do next, Jonker replied: "I intend to file a complaint about this at the European Human Rights Court in Strasbourg (ECHR), to make it clear that the way the Dutch judiciary undercuts real privacy is not acceptable. But a European court case is difficult. For example, if the municipality of Arnhem were to definitively abandon its plan to close the containers for the third time next autumn, it is quite possible that I would soon no longer have a litigation interest in the eyes of the European court. So then the legal route will end. In that case, this case would not set a precedent at the European level. Also, the ever-increasing use of the 'administrative margin of appreciation' in European case law undermines the legal protection that Dutch citizens like me can expect from the European courts."

Asked if there are other ways to set a precedent, Jonker replied: "After what I have experienced in various privacy proceedings over the past seven years, I am increasingly under the impression that the law as practised by judges in the Netherlands does not provide real privacy protection. Not even after the introduction of the AVG. As a result, I am gaining more and more understanding for civil disobedience, for example, in this case the Arnhem citizens who placed their rubbish bags next to the containers, causing great mess on the streets. They thus got that referendum done, which means the containers are now open again. That was apparently the only way to get it done. If the judiciary makes itself irrelevant, it is inevitable that the dialogue between citizens and government will take place in other places, such as on the streets and in corrupt back rooms. That is what the current behaviour of many government officials, including judges, is leading to. All kinds of warnings, for instance from Herman Tjeenk Willink and other wise people, are ignored. I hope enough judges are willing to wake up before our rule of law suffers irreparable damage."

Media:
Omroep Gelderland, 30 June 2021: Arnhem waste pass need not go in the bin, privacy fighter loses case
Security.co.uk, 1 July 2021: AP allowed to lift penalty for waste system municipality of Arnhem
Tweakers, 1 July 2021: AP need not act on Arnhem waste pass by Council of State
Gelderlander, 1 July 2021: Electronic waste card Arnhem was ultimately right, judges top court 

Update 25 August 2021: Michiel Jonker informed Privacy First on 24 August that he has decided not to go to the European Court of Human Rights (ECHR) in this case, despite the fundamental flaws in the Council of State's ruling. He came to this decision after becoming aware via the internet that a new Protocol to the European Convention on Human Rights, known as Protocol No 15, had entered into force as of 1 August 2021. Following this, he had sought advice on its implications for the chances of success of an application to the ECtHR. Protocol 15 provides, among other things, that petitions by citizens will be declared inadmissible by the ECtHR if, in the eyes of that Court's lawyers, there is insufficient evidence of "significant harm" occurring as a result of a particular measure. In this case, that would involve harm caused by the Arnhem address-based waste pass.

Jonker: "I already had a hard head, but I had been advised to go to the ECHR anyway to make it clear that I, as a citizen, do not voluntarily resign myself to the Council of State's ruling. With that ruling, the Council gave governments a license to process personal data arbitrarily. The Council of State calls this "a certain leeway" that administrative bodies have, but that is a euphemism for almost total arbitrariness as soon as political administrators want something. It turns off the law in this way, especially also Article 5(2) AVG, which states that the necessity of data processing must be provable. The Council of State considers it essentially sufficient if a government states that a processing is necessary for its self-chosen purposes, without having to prove it in any way. This is how it goes in authoritarian-ruled countries. If those in power state that something is true, it is therefore true. I would not have thought until a few years ago that the Dutch judiciary could sink so deep."

Asked why the new Protocol 15 is relevant, Jonker said: "I knew nothing about this Protocol until recently. It appears to have been drafted back in 2013, but has now been ratified by enough countries to enter into force. The Protocol further breaks down the procedural rights of European citizens at the ECtHR, and thus the chances of an application by me to that human rights court. In effect, this Protocol means that there is no longer any European legal protection until serious harm has been done in the eyes of ECHR lawyers. Specifically, that would mean that I would only become admissible at the ECtHR if my privacy has already been harmed by means of the waste card, and in such a way that it has also led to serious, concrete consequences for me personally. I know from a previous case on a different topic that ECHR lawyers often do not consider a case serious until it translates into financial loss. As long as it has not yet demonstrably cost me euros or physically affected me, they will not consider the harm in my case serious enough and thus will not even consider the case. Whereas, of course, privacy and other fundamental rights are about much more than just financial or physical damage. In other words, as long as the calf has not yet been drowned, the ECtHR is not going to fill the well in privacy cases. The negative precedent set by the Council of State's ruling is not enough in itself to make me admissible in the eyes of the ECtHR."

Jonker draws far-reaching conclusions from the course of events: "It is not diplomatic what I am about to say, but as an individual citizen I don't need to be diplomatic either. After my experiences over the past decade, I can honestly say that I no longer believe that the Netherlands is a constitutional state, at least when it comes to how the government handles privacy. I also no longer believe there is "the rule of law" in the EU on this issue. A façade is being maintained with the AVG, but when all is said and done, it is nothing more than opium for the people. Our judiciary, as the Council of State has also demonstrated in this case, is not independent, but a kind of executive subdivision of government power. It is all very velvety wrapped up in our rich little country, but essentially no different from the situation in countries with authoritarian regimes. We are presented with an illusion that we would have rights, enshrined in laws, when in fact they are nothing more than temporary favours as long as it is deemed politically expedient. The law can be interpreted away at any time."

Asked what, looking at it this way, he himself would like to do next in terms of privacy, Jonker replied: "I have seen this coming for some time and have therefore not started any new cases after 2018. I want to finish the ongoing court cases neatly. But after that... I don't know yet. More than 20 years ago, I took a course in administrative law with the idea that it would enable me to contribute to a government with integrity and fairness. That turns out not to be true. In the current situation, an administrative law degree is useful for someone who wants to make a civil service career and maintain a façade of administrative legitimacy, but not for someone who values a government of justice and integrity. I was able to use my education to gain insight into how Dutch administrative law really works. With my own eyes, I have seen that it is actually not justice, but a form of administrative propaganda, which the implementers themselves continue to believe in as much as possible. Understandable, because they naturally want to suffer as little cognitive dissonance as possible. Once I have seen that and look through it, the question is: how to proceed? How can I contribute something to society, in a healthy way? Over the past few years, I still did prey on myself. Now that I have seen enough, I am no longer the right person to fight this kind of legal battle. I am now getting my bearings. Where do I get pleasure and energy from?" He laughs: "Sustainability starts with yourself."

So does Jonker see his court cases as a failure? "No, because I have made certain things a bit more visible, not only to myself, but also to others. That is a link in a process of raising awareness. I have published texts through your website, and this year court sessions have been recorded on video and audio. These are on Potkaars.co.uk. Combined with the subsequent State Council rulings, that shows a lot. The emperor has no clothes on. So we either need new clothes or a new emperor." He hesitates. "But if the sea level were to rise rapidly, then of course, for a country like the Netherlands, it would all become a bit less important. In that case, I could still agree on something with the gentlemen and ladies of the Council of State: after us the deluge."

Looking back, what does he think of the Arnhem Waste Pass? "The waste pass was, or is, an attempt to control and direct people by machine means. This is a techno-solutionist approach, reducing people to a kind of robots or laboratory rats. We see this, for instance, in the attempts, without proper analysis of the global situation, to pressure all people, regardless of their personal vulnerability or personal situation, to be vaccinated against Covid-19. Supposedly out of solidarity, but you can't force solidarity, and besides, all sorts of other, big risks are being taken in the meantime, for example mass tourism and festivals. The only way techno-solutionism could even theoretically work is if you say goodbye to humanitarianism and the rule of law. In Arnhem, we saw people simply dumping their rubbish bags on the streets because the municipality failed to manipulate and scare them enough. And fortunately in Arnhem, we still had a referendum option. We need to move towards a very different approach. But that requires administrators to re-engage with citizens after decades of indifference - not just for the stage, but for real. This requires a new form of awareness among administrators. Perhaps a few disasters are needed before that happens. Or else a whole new generation of administrators." 

Media: 
Security.co.uk, 25 August 2021: Privacy activist does not take case over Arnhem waste pass to European Court 
De Gelderlander, 28 August 2021: Privacy fighter Michiel Jonker quits fight against Arnhem waste pass: 'There is no rule of law anymore'.