Michiel Jonker appeals over privacy breaches Connexxion and NS

Personal data authority refuses to investigate or enforce

In July 2018, in two enforcement requests, Jonker asked the AP to investigate and enforce regarding:

1. Refusing to refund remaining balance on anonymous OV-chip cards if the holder does not provide his name and address details to Dutch Railways (NS);
2. Denial of international train tickets by NS employees at station counters if buyers do not provide NS with their name and address details;
3. Charging, since 2 July 2018, additional "service fees" when holders of anonymous OV-chip cards pay cash to top up the balance on these cards.
4. Transport company Connexxion's refusal of privacy-friendly, cash payment for one-way bus tickets on the bus.

The AP refused to seriously investigate these breaches of privacy because, according to the AP, an "overall (desk) investigation" already showed that there was no breach. Jonker disputes that, because either personal data are processed without demonstrated need (1, 2, 4), or without demonstrated need travellers who want to maintain their privacy are discriminated against compared to travellers who give up their personal data (3).

With regard to the sale of international train tickets (2), Jonker noted in February 2020 that NS was silent at the court hearing (on 16 December 2019) about the fact that, since November 2019, many international tickets sold by NS to customers do require customers to have their name and sometimes date of birth processed by NS in a digital system. The previous "ATB system" that previously allowed anonymous tickets was then eliminated, and now customers are required to purchase a "Homeprint" using the so-called "Atlantis" system.

Jonker: "NS believes of itself that NS is not responsible for this because it would be commissioned by foreign transport companies. But NS is co-responsible as a processor and must comply with the AVG. The AP first wrongly declared itself incompetent on this point. When I had refuted that, the AP suddenly found that my enforcement request was not about this. And the court then said my enforcement request was "too indefinite" even though I had provided the AP with specific material showing that the anonymous system would be disabled. They twist and turn in a thousand ways to find reasons to reject my enforcement request."

To reduce the risk that the ATB system will not be technically dismantled before the AP has still investigated, Jonker has also filed an application for injunctive relief (a type of summary proceedings) with the Council of State. He wants the court to order the AP to protect the privacy-friendly infrastructure of the ATB system until an investigation has been conducted. The request will be heard by the Council of State on 30 April 2020 for now.

At Connexxion, Jonker said, firstly, it has not been demonstrated that "social safety" on bus lines in his region is at risk, and secondly, he said, it has also not been demonstrated that refusing cash payment, as one measure in a package of 23 measures, has an effect on safety on those lines. Jonker: "They shout the word 'safety' and feel that they have then demonstrated something for all bus lines nationwide. But then I might as well start shouting that all central heating boilers are dangerous and should therefore be abolished. This quasi-paranoia from a club of governments and transport companies that wants to get their hands on all our personal public transport data is accepted unquestioningly by the AP and the Gelderland District Court. This violates Article 5 AVG, which states that a necessity and a defined purpose must be demonstrated."

The Jonker's full appeal is online (entitled "Praise of individuality - privacy, connectivity and authoritarian thinking", 191 pp). Jonker is supported in both cases by Privacy First and Society For Better Public Transport (www.voorbeterov.nl).

(Due to circumstances, this message has been published with a delay)

Update 26 June 2020

The preliminary relief judge at the Council of State ruled on 12 June and rejected Jonker's request. For the ruling, see https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RVS:2020:1379. Jonker: "It's unfortunate, but at least my application for injunctive relief resulted in the injunction court asking questions of NS that the AP never wanted to ask. From NS' response, it appears that a decision was already taken by NS and other transport companies in 2018 to start abolishing the privacy-friendly ATB ticketing system. Because of the court fee I paid, it does make it very expensive as a citizen to have to do truth-seeking in this way, as the AP does not want to fulfil its duty in this regard. But now that this fact is known, I can take that into account in the proceedings on the merits."

In the proceedings on the merits, Jonker filed a further statement of reasons following the order of the preliminary injunction court on 22 June last, focusing on the scope of his enforcement request. For the text of those reasons can be found here (pdf).

Update 26 November 2020

The Administrative Law Division of the Council of State has announced it will hear three Jonker appeals on privacy in public transport at a hearing on Monday 8 February 2021. The cases are as follows:

• Cash payment on buses; AP and Connexxion (case no. 2020-01625)
  start: 9:30am.
• Purchase of international train tickets, residual balance OV-chipkaart, service costs OV-chipkaart; AP, NS and possibly others (case no. 2020-01629)
  start: 10:30am.
• Privacy discrimination in OV chip card; de-anonymisation of "anonymous" OV chip card (case no. 2019-07478)
  start: 11:30am.

All three cases will be heard at the Administrative Law Division building at Kneuterdijk 22 in The Hague.

Update 26 January 2021

On 15 January last, Jonker submitted the grounds of his appeals supplemented because of recent developments. In his supplement, titled "Movement control and restriction of movement", Jonker argues that a combination of attitudes among transport companies, the Dutch state and some Dutch judges threatens to eliminate the fundamental right of Dutch citizens to freedom of movement while maintaining privacy, even in situations where there is no need to affect that fundamental right. He calls for an independent judicial review that respects the intent of applicable laws and treaties.

Due to personal circumstances related to Covid-19, Jonker is unable to attend the scheduled hearings on 8 February 2021. He agreed to answer questions from the Administrative Law Division in writing.

Jonker: "It is annoying, but it is no different. I hope the Department itself will look for ways to still allow the process to take place in a fair manner, partly in view of its social importance."

Update 15 February 2021

Due to a failing video link on February 8, the State Council postponed the hearing of Jonker's appeals until further notice.

Jonker: "It is very frustrating for all concerned. I understand the importance of a hearing where live exchanges of views can take place. If that is not technically possible, I am personally prepared to respond in writing to any questions from the Administrative Law Division of the Council of State, given the exceptional circumstances, and to input from other parties at the hearing, as recorded in the hearing notes. It is in the interest of all public transport passengers that the case is not adjourned indefinitely. It is up to the Administrative Jurisdiction Division to determine how much delay the case can tolerate, in other words, at what point the legal certainty of OV passengers requires that the hearing be continued in some way. As the saying goes: justice delayed is justice denied..."

Update 8 July 2021

on 5 July, the Administrative Law Division of the Council of State heard Jonker's three appeals on privacy in public transport in three consecutive hearings. Each hearing dealt with the AP's refusal to investigate (sufficiently) and its refusal to take enforcement action:

Session 1: Connexxion's refusal of cash payment on the bus.

Seat 2: Three breaches of privacy by NS:
(a) processing personal data when returning residual balance on "anonymous" OV-chip cards to the owner;
(b) NS demands personal data from passengers who want to purchase an international train ticket within the EU at the counter;
(c) NS charges extra service fees to travellers who want to pay at the counter in a privacy-friendly (and therefore cash) way to recharge their "anonymous" OV-chip card.

Seat 3: Three breaches of privacy by NS:
(a) missing anonymity of the "anonymous" public transport chip card sold until recently as "privacy-friendly", and NS' deception about it until it came out;
(b) privacy discrimination against holders of benefit-hour season tickets (VDU): they will not get benefit-hour discounts if they travel with an "anonymous" public transport chip card;
(c) privacy discrimination in the implementation of the Geld Terug Bij Vertraging (GTBV) scheme: holders of "anonymous" public transport chip cards will only get their money back if they actually de-anonymise their public transport chip card, which means that not only the delayed journey but also all other journeys can be registered by NS and/or TLS.

Jonker: "The seven privacy breaches dealt with in these three sessions paint a picture of how Dutch transport companies are collectively trying on all sides to seize travel data (places and times of people's private journeys), and to make it as difficult as possible for travellers trying to maintain their privacy. This is promoted by various ministries, other government agencies (e.g. CBS) and all sorts and bodies from so-called "civil society" (the polder). The Personal Data Authority refuses to act against it. The data theft is in full swing. It seems even judges don't want to stop it. My October 2019 analysis That there is a conglomerate of governments and companies in the Netherlands that wants to abolish real privacy in public transport is reaffirmed in this way.

If the Council of State is going to rule that this arbitrariness of transport companies in processing personal data is permissible, thus legalising that arbitrariness, then it is clear that privacy is no longer protected in law in the Netherlands and is therefore abolished in practice. The fundamental right to privacy will then no longer exist. Instead, privacy will then only be a favour granted to some people in some cases, arbitrarily and on instrumental grounds, e.g. political or relational grounds - but not to others. The government and large corporations are then allowed, without our consent, to penetrate deep into our private lives unhindered and to direct, reward and punish us through that means."

An interview with Jonker, video summaries of the three sessions and the integral video recordings of the sessions can be found on the Potkaars site: https://potkaars.nl/blog/2021/7/7/de-veronderstelling-dat-je-het-recht-hebt-anoniem-door-het-leven-te-gaan-ter-discussie-gesteld-door-de-ns

Media

Volkskrant reporter column 6 July 2021: Privacy no longer exists, and we allowed that to happen ourselves

Update 22 November 2021

On 10 November 2021, the Administrative Law Division of the Council of State ruled on the three appeals lodged by Jonker against the AP's refusals to take enforcement action against the invasion of privacy in public transport:

- OV-chip card case: https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RVS:2021:2509

- Case-Connexxion (cash payment): https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RVS:2021:2511 

- Case-NS 3rd tranche (including international train tickets): https://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RVS:2021:2514

The State Council declared all appeals unfounded on all parts. Jonker says he will study the rulings in more detail when he has "regained his energy" before drawing final conclusions. However, he would already like to say the following:

Jonker: "With these rulings, the State Council has abolished the right to privacy in public transport. Every individual passenger may be tracked and registered everywhere, without having to prove a specific need. It is sufficient, for example, that a transport company itself considers it 'efficient' to do so. According to the State Council's interpretations, the AVG does not protect against this. Articles 5 and 6 AVG have been rendered meaningless by the Council of State in this way. After transport companies such as NS and Connexxion had already effectively abolished privacy, the Council of State has now retrospectively provided that with legal approval and thus legalised it. I already have a analysis delivered to the Lower House and the Council of State about what is happening to privacy in public transport. The Lower House did nothing with that. Now the Council of State too appears to have almost completely ignored that analysis and my other arguments."

Asked if this is a blow to him personally, Jonker replied: "Yes, at least to the extent that I saw this coming for some time, as I did in a interview have indicated. It is good that the court sessions on 5 July this year were videotaped in full and published with that interview. That way, everyone can see for themselves the pathetic level to which the gentlemen judges lowered themselves at times. It is now definitively clear to me that the Netherlands is no longer a constitutional state on essential points, including the fundamental right to privacy. Last week, there was news that the chairman of the Administrative Law Division made a "sincere apology" with much fanfare for the fact that the Council of State had ignored all kinds of issues in the Supplements affair. I find such apologies utterly implausible and opportunistic. They are only given because the high court judges were caught out in that case and can no longer sweep it under the carpet there. Meanwhile, as the rulings in my appeals show, those judges just ramble on as executors of the power apparatus they are part of. I no longer see them as judges, but as prelates clad in the arrogance of power. Our rulers want us to have no real privacy anymore, but only eat grace bread insofar as they allow us to with their digitised systems, in the form of temporary favours. Like: you must trust that we will not follow you for a while now, even though we have broken all our promises on that point in the past..."

Asked what he will do next, Jonker replied: "First, I will now explore how best to relate as an individual subject - no longer a citizen - to the fact that we no longer live under the rule of law. Without privacy, there is no real freedom, and it becomes more difficult to defend or restore our freedom. For me, this is a great loss. I am also likely to seek support from kindred spirits, to see if there are opportunities for laying a foundation for a return of the rule of law. I understand that many people are not very concerned about this as long as there is bread on the table and can be celebrated from time to time. I take a different view, especially also with a view to the longer term.

Secondly, when I have regained my energy, I will see whether it makes sense to petition the European Court of Human Rights (ECHR) about these three judgments. I have already been advised that this is not likely, as the ECHR takes the same anti-rights-state stance as the Dutch Council of State in many cases these days. 90% of petitions are not even considered, and I understand that people in the ECHR's offices sometimes ridicule privacy cases. They resent what is happening in Poland with the constitutional court there, not because it is anti-rights - we don't even have a constitutional court in the Netherlands - but because it is not in line with the wishes of central powers in the EU. With Poland or the Brexit and Northern Ireland, the EU is waving the importance of 'the rule of law', but for the EU and the ECtHR, the rule of law and privacy are in practice mainly economic and political tools, not independent or intrinsic goals.

I will try to see if filing a petition in those circumstances can still be useful, as a signal or for documentation for later. For example, to make the responsibility for abolishing real privacy protection in public transport visible and demonstrable at all legal levels."

Privacy First supports Jonker should he decide to petition the ECHR.

Media

Security.co.uk, 23 November 2021: Privacy activist loses appeal over anonymous public transport chip card
Tweakers, 23 November 2021: Personal Data Authority need not act against NS by Council of State
Technology, privacy and law, 10 December 2021: Privacy activist loses appeal over anonymous OV chip card! 

Update 2 March 2022

on 25 February, Jonker sent an application to the European Court of Human Rights (ECHR, ECtHR), arguing that the three rulings of the Administrative Jurisdiction Division of the Council of State dated 10 November 2021 are not in line with Articles 8 and 14 of the European Convention on Human Rights (ECHR).

The English-language petition (a so-called "application") is entitled "Public Transport - a Railroad to Surveillance?". In the application, Jonker focuses on the importance of substantive justice. If the European Human Rights Convention is interpreted only formally and procedurally, the right to privacy is not adequately protected. Jonker: "It was quite a job to do it according to the European Court's rules. In the end, it was a 993-page package: the application form of 13 pages, an annex of 19 pages and the remaining annexes: 961 pages - all printed single-sided and manually numbered through. I hope I have complied with all the rules. Should the European Court nevertheless declare my petition inadmissible, it would make it clear that, in practice, individual European citizens do not have access to the court that is supposed to protect their human rights. Of course, I hope the court sees that this is a serious matter: the possibility for Dutch and European citizens to travel by public transport without being constantly monitored. If we do not want to become China 2.0, then public transport while maintaining privacy is crucial.”

For the text by Jonkers petition can be found here (pdf)

Media

Technology, privacy and law, 10 May 2022: Dutch public transport - a railroad to surveillance?

Update 8 August 2022

following the decision of the preliminary injunction court on 12 June 2020 (see update 26 June 2020 above), Jonker filed a second enforcement request on 20 June 2020 by way of precaution in relation to the processing of personal data enforced by NS and foreign transport companies when purchasing international train tickets within the EU and Schengen area. In April 2022, the AP considered this additional enforcement request and asked Jonker by letter, among other things, why it believes it is a "data subject" within the meaning of the General Data Protection Regulation in this case.

Jonker replied by letter dated 7 May 2022, in which he also attached the fully transcribed text of a conversation at the station counter on 20 February 2020, an audio recording of which had been surreptitiously made by him in the presence of a witness. For the text of these documents (cleaned of certain personal details), see here (pdf).

In a letter dated 21 July 2022, the AP gave Jonker the opportunity to respond with a "viewpoint" to NS' answers to the AP's questions. Jonker sent this view to the AP on 6 August 2022. For the text of the view, see here (pdf).

Jonker: "At the moment, two issues seem to be central. The first is the question of who are the data controllers in the enforced processing of personal data when selling international train tickets. I am almost certain that these are the foreign transport companies that offer and sell the train journeys to customers. After all, they determine what personal data is processed. That means the AP would have to cooperate with foreign regulators in this case. NS seems to want to prevent that from happening and therefore calls itself a data controller for all international tickets, even when NS does not determine at all what personal data is processed.

The second question is what is now the purpose, necessity and legal basis for the enforced processing of personal data. NS wants to force a digital Homeprint ticket on me, but all I want is to be able to buy an anonymous ticket, as was normal for decades - those were those sturdy, paper ATB tickets. The only substantive argument NS puts forward against this is that NS wants to be able to inform me about train-related matters anywhere in the world at any time - so not only at stations and on trains, but also in my own bedroom, so to speak. Therefore, NS finds it necessary to have my personal data so they can contact me via apps on my smartphone all the time. NS then calls that a legitimate interest of NS. Well, pretty much not.

I don't want to be disturbed by NS at home or in my free time. I don't even use a smartphone and don't want to. But I do want to be able to travel by train in Europe, to see my family and for holidays. And without unnecessary peeping by transport companies and the sneaky data shops they have set up."

Update 25 August 2022

Following the view submitted by Jonker, the SP (Renske Leijten and Mahir Alkaya) submitted written parliamentary questions to the Minister of Infrastructure and Water Management on 24 August last, see https://zoek.officielebekendmakingen.nl/kv-1045732.pdf.

The parliamentary questions are all the more topical because of plans by NS and other transport companies to introduce an "OVpay" system that would allow passengers to be tracked in all their movements to within a few metres, and because of rumours of NS' plans to do away with the last-staffed station counters, which would make privacy-friendly ticket purchasing impossible in yet another way.

Jonker: "More people are beginning to notice that the ever-increasing invasion of privacy in public transport (and elsewhere, for that matter) seems to be taking place in a coherent manner. Privacy-friendly payment methods are being abolished or made unattractive everywhere, while people are being 'nudged' and pressured to have their private behaviour monitored in detail through digital systems. I am pleased that two MPs are now pushing for clarity on the part of the minister responsible where public transport is concerned. The Lower House has indicated that there should always be an analogue alternative to digital transactions. Even the VVD has stressed that the counter function must be preserved. But so far, the government has by no means acted on those words and has actually phased out human services as much as possible. As concession granter to the public transport companies, the Dutch state must finally, after more than a decade of looking away, start making demands on these companies on this point. Respect for people must once again become central to how our society is organised. Only then can we also treat our environment in a respectful way."

Media

https://www.security.nl/posting/765576/ (on the parliamentary questions)
https://www.privacynieuws.nl/index.php/binnenlands-nieuws/ov-chipkaart (on OVpay)
https://www.security.nl/posting/763487/Landelijk+inchecken+met+betaalpas+in+openbaar+vervoer+uitgesteld+naar+2023 (on OVpay)

Update 6 October 2022

On 8 September, the European Court of Human Rights (ECtHR) declared Jonker's petition inadmissible and thus refused to hear the case. The court gave summary reasons for this decision: "On the basis of its jurisprudence (...), in the light of the material available to it and in so far as the cases complained of fall within its competence, the Court considers that they do not plausibly establish that there would be an infringement of the rights and freedoms referred to in the Convention or its Protocols and that the admissibility requirements in Articles 34 and 35 of the Convention have not been met." (translation by Jonker)

After consulting the case law referred to by the ECtHR (two previous ECtHR decisions), Jonker speaks of a "bizarre decision that fundamentally affects the credibility of the judicial protection that Article 8 ECHR is supposed to provide". The Court's refusal to even consider this case, according to Jonker, shows that "the privacy of passengers on public transport is not protected at all by the court which, when all other protection fails, is the only one left to provide, and should provide, a guarantee that Article 8 of the ECHR is effectively applied."

The ECtHR refers to two previous rulings in cases that, in its view, are apparently "substantially similar" to the case raised by Jonker. It seems as if the ECtHR did not consider it necessary to hear Jonker's case for that reason and therefore declared him inadmissible. The two cases referred to by the ECtHR both concerned companies that had dismissed some employees after monitoring them and finding misconduct. In those cases, the ECtHR concluded that, despite the surreptitious processing of personal data, the dismissal was not unlawful. The ECtHR seems to equate the covert monitoring of employees by their own employer, based on concrete suspicions, with the monitoring of the private journeys of millions of public transport users by transport companies.

Jonker: "The ECtHR wrongly equates the right of an employer to adequately monitor its own employees during working hours following a specific suspicion with a right of a transport company to collect private data of random travellers, without those customers being suspected of any offence. Basically, the ECtHR is saying two things here: 1. public transport passengers may be treated in terms of data processing as if they were not customers of the transport company, but employees of that company. And 2. In terms of data processing, public transport passengers may be treated as if they are under concrete suspicion. This way, of course, nothing is left of the right to privacy. If every private person is allowed to be treated like a suspected employee, then we are living in a surveillance society. Article 8(2) of the ECHR allows surveillance only insofar as it is necessary in a democratic society. That is ignored by the ECtHR in this way."

Asked what could explain this decision by the ECtHR, Jonker replied: "Of course, I cannot look into the mind of the judge in question. All I can rely on is the summary reasoning and the case law referred to. By not even taking up the case, the ECtHR is making it impossible to get clarity on this, because there is no legal remedy against this decision. In this way, the ECtHR is obviously making a mockery of the idea that there would be a cognisable right. But if I may guess at possible reasons, I see two. First, I think the ECtHR, with its huge workload and structural lack of staff capacity, very pragmatically wants to declare as many cases inadmissible as possible, and thus looks for reasons - pretexts if necessary - to do so. So then such a judge thinks: where can I find case law with which I can dismiss this case? He who searches will find, and if such a judge then sees something that seems useful at first sight, he thinks: why not? The fact that the case is completely different does not matter to such a judge, because the petitioner can no longer do anything anyway if the case is declared inadmissible. I think the immediate reason for the inadmissibility declaration can be very superficial and pragmatic."

Jonker sees a second possible reason in the fact that a transport ticket, e.g. a train ticket, is understood by the courts as a "contract" and for this reason is equated with the employment contract an employee has with his employer. Jonker: "Here you see the political knock-on effect of neoliberalism in the views of judges who are supposed to interpret the law independently. They no longer wish to see that there is a difference between a contract that an employee knowingly signed when he voluntarily accepted work, and the general conditions that a transport company has unilaterally drawn up and imposed on millions of public transport passengers who depend on public transport. This is indicative of how the EU and apparently also the ECtHR have internalised a neoliberal logic that violates international conventions such as the ECHR. In my application to the ECtHR, I pointed out the misuse of the contract concept and indicated that there is no democratic necessity for the relevant invasions of privacy. I indicated that the Council of State refused to review the case directly under the ECHR. But now the ECtHR itself also refuses to assess the substance of the case against the ECHR. Well, if the ECtHR refuses to hear my petition, then no arguments can be exchanged on the crucial issue of the relationship between a democratic necessity and the provisions in a contract drawn up by a company. There is then a legal silence that paves the way for the abuse of power to continue. There is then no legal protection." For Jonker's further analysis of the ECHR case law cited, see here (pdf).

Asked what conclusions he draws from the case, Jonker replied: "Legally, this is the end of the story. I note that both Dutch judges and the European human rights court refuse to protect the fundamental right to privacy in public transport. If those judges had been bribed with bribes, the outcome could not have been worse. This is just one example of how privacy is respected in name but in fact eliminated. One of the consequences is that little remains of my faith that we would live in a so-called 'rule of law'. Law - 'the rule of law' - has been reduced to a rhetorical device to serve certain political ends."

Jonker compares what is currently happening to residents' privacy in the EU to the three Polish partitions at the end of the eighteenth century. "European powers not only wanted to wipe Poland off the map as a real existing state, but after the last partition they also tried to erase the memory of what Poland had once been. It took more than a hundred and twenty years before Poland resurfaced, in a new, different form. Today, we think the behaviour displayed by the great European powers at the time is criminal - just look at how we feel about Putin and his current attempt to partition Ukraine. Perhaps one day we will look the same way at the way European powers are killing our privacy today, with collaboration from judges at all levels. Those rulers and judges will not be punished, any more than Catherine the Great, the Habsburgs, the Prussian princes and their servants were punished at the time for what they did to Poland. With the failures and hypocrisy of so-called representatives of the European rule of law, I have recently begun to have more sympathy for people who see the EU as an oppressor. I hope, for instance, that once the Ukrainians have driven off the Russian attackers, they will not then surrender themselves by the skin of their teeth to an increasingly imperialist EU, but will defend their freedom, including their privacy, even then. But I fear the worst."

He pulls a sour face. "I have consistently used my supposedly anonymous OV-chipcard since the beginning of this case in 2014, while I also paid 60 euros annually for my off-peak hours card that should have offered 40% discount, but was declared invalid by NS in combination with the anonymous OV-chipcard. So for eight years I paid 66% too much for my off-peak train journeys, plus a season ticket that NS did not allow me to use while maintaining privacy. Every year, this still amounts to several hundred euros. I will never get that money back, it was stolen by NS. This is the Netherlands, a country of white-collar thieves."

So is that the end of the story in terms of privacy in public transport? Jonker: "Perhaps not quite yet. In response to one part of the case, namely the demand for personal data in international train tickets, I filed a second enforcement request in 2020 for legal reasons. The AP has since launched an investigation in response. The SP has also recently submitted written parliamentary questions to the minister on the matter. So that is still ongoing. But given the lack of European or international legal protection, I wonder if there could be enough political pressure to start taking the privacy of international train passengers seriously. And even if it does, it would be no more than a drop in the ocean. Because the systematic, large-scale privacy violation with the Dutch OV-chipkaart system, it is just allowed - that is, tolerated by the AP and legalised or not dealt with by judges."

Asked what conclusions he draws for himself, Jonker replied: "I followed the legal route to the end in this case, partly to test whether or not there is ultimately any legal protection in the area of privacy. If you look at it as an experiment, the outcome after eight years of litigation is clear: there is no serious legal protection, the AVG and Article 8 ECHR are in practice being abused as waxworks. There are still a few other privacy proceedings pending, which I want to finish neatly, but I don't expect much more from them. If the law fails, politics remains. But I am not a political animal. And besides, developing political strength depends on people's consciousness. Maybe I can contribute something to privacy awareness in a modest way."

Jonker says that in one of his justifications to the State Council, on 29 April 2020, he wrote about what he "the banality of the third evil" mentions. "That chapter ended as follows: 'This third evil, the creeping elimination of human consciousness, cannot be conquered spectacularly with tanks or missiles, but only through the harnessing of individual and collective consciousness, the resulting collective will, and the resulting legislation, justice and law enforcement.' So I think the key is to work on new consciousness as a basis to grow beyond the current, technocratic tunnel vision. The real problem is humanitarian, not technical. Only by putting humanitarianism at the centre can we arrive at the restoration of a humane rule of law. In the past two and a half years, since the corona crisis, a huge number of people have already woken up to how we are in danger of losing our freedom and humanity more and more. So I think a foundation has certainly been laid that can grow further. Whether that will be enough to avoid disaster at this point, I dare not make a prediction on that. It's about finding new sources while continuing to know and respect old sources of humanity and justice."

Doesn't he find that a bit floaty and passive? Jonker: "No. It is a misunderstanding to think that consciousness would mean that you are no longer willing to fight for something. Look at Ukraine. There, a collective consciousness has grown at lightning speed about humane and national values that people want to protect and defend. Even by force of arms if necessary. Of course, I hope it will never be necessary here in the Netherlands. But I cannot rule that out either. You see that our current government is not particularly interested in reasonable arguments. But when farmers block highways with tractors, our government's interest in dialogue suddenly increases. We have seen something similar with the Yellow Vests in France. Why is the French government willing to effectively protect all French citizens from extremely high energy prices, while the Dutch government, until recently, indirectly showed it wanted to throw entire populations in front of the bus? It has everything to do with those Yellow Vests. Who knows, maybe one day yellow, green or purple vests will be needed to defend or regain our privacy." 

Update 18 January 2023

The parliamentary questions asked by the SP on 24 August 2022 (see above at update 25 August 2022) were answered on 21 November 2022, according to the House of Representatives website. For the answers, see here (pdf). In a nutshell, the relevant ministers take the position that transport companies may process personal data of public transport passengers unless prohibited by the AVG.

Jonker: "This is the opposite world. In this way, the government is not taking any responsibility for adequately protecting the personal data of public transport passengers. Instead of standing firm on the protection of passengers' privacy itself, the government is legalising it by leaving it to the enforcement of a law by the Personal Data Authority (AP), which, however, receives far too little budget from the same government to adequately perform its task.

My two enforcement requests on this particular issue were submitted in July 2018 and June 2020. A few days ago, I received yet another message from the AP that the deadline for the AP to decide on my request has been pushed back by another three months, due to lack of staff capacity. Why doesn't the government itself intervene through regular consultations with the transport companies and through the granting of concessions? As far as NS is concerned, the State 100% owns that transport company, but has for years allowed and even encouraged NS to continue violating and even increasingly violating travellers' privacy."

In response to the last of the seven questions, the ministers write that the answers to the previous questions would already show that "user-friendly non-digital alternatives are available to travellers".

Jonker: "That is simply an untruth. In 2012, there were still 10 Dutch train stations with counters where you could buy international train tickets, now there are five (Rotterdam, Schiphol, Amsterdam, Utrecht and Arnhem). So the government finds it "user-friendly" that an inhabitant of Groningen, Friesland or Limburg has to travel two hours to buy an international train ticket at the counter in Arnhem or Utrecht... Why has such service at the counter been abolished at five stations since 2012, while in a Parliamentary debate on digital affairs on 30 June 2022, the largest governing party (VVD), through MP Q.M. Rajkowski claimed, "As the VVD says with all digital developments: the counter function must remain open, and digitalisation, digital solutions and digital communication must not become mandatory." This does not correspond to the policies that the VVD and other governing parties have actually implemented since 2012. The words and the deeds do not match, and that is exactly how privacy is abolished in practice."

Asked what he will do if the AP continues to endlessly delay the decision on his enforcement request, Jonker replied: "I am a reasonable person, but NS' answers and my subsequent views have been sitting on a shelf at the AP for almost another six months now, after the AP previously took four years before asking NS some obvious questions. If the AP continues to do nothing, I am considering declaring the AP in default for not taking a decision in time. Privacy supervision is a joke in the Netherlands this way. Soon, no organisation will take the AVG seriously. And that seems to be exactly what our government is aiming for, given its policy since the AVG came into force in 2018. As an EU member state, the Netherlands remains grossly in default. But the EU does not care much about that, because privacy protection does not really seem to be wanted there either. It is supposedly considered important, but meanwhile sabotaged in various ways and indirectly put in a bad light."

Update 5 November 2024

After a four-year wait, the AP issued a first (primary) decision on 28 August 2024 on Jonker's 2020 enforcement request regarding privacy breaches in the purchase of international train tickets. Rail carriers such as Deutsche Bahn and France's SNCF demand passengers' personal data when purchasing tickets: their name and (in the case of SNCF TGV tickets) also date of birth, and have this carried out at Dutch station counters by NS.

In its decision, the AP states that it refuses to investigate these breaches. When it comes to claiming train passengers' names, the AP assumes that NS is the (sole) data controller, but does not make clear why. When it comes to claiming the date of birth of train passengers, the AP argues that it does not know who the data controller is, does not want to investigate that either, and does not consider the significance of a possible breach to be high enough.

On 3 October 2024, Jonker filed a pro forma appeal against this primary decision, followed by a statement of reasons on 27 October. Jonker suspects that the AP's refusal to act against the large-scale privacy violation of train passengers has to do with political wishes to introduce the PNR (Passenger Name Records) registration system used for air travel also for rail and bus transport, where every passenger and every journey made would be recorded. In Belgium, the parliament voted for PNR in rail transport in 2016. In the Netherlands, Minister Grapperhaus thought it was a good idea in 2018. The AP may want to anticipate future legislation on it for political reasons.

Jonker: "Ever since my first enforcement request on this in July 2018, the AP has been acting like I am crazy. First, the AP declared itself not competent. Then the AP became reading-blind and found in 2019 that my enforcement request was not about what it was about. Then the AP found my enforcement request too broadly worded and therefore too "indefinite". And meanwhile, the AP believed the blue eyes of NS who hushed up - including in court - that it was indeed NS policy to demand this personal data from travellers. The Council of State ruled in 2021 in the proceedings on the merits that my enforcement request was worded clearly enough, but that at the time of the AP's first decision on objection, there was no evidence that this was actually happening.

After my second enforcement request in June 2020, the AP could no longer ignore the fact that evidence was available. Then the AP started stalling for time, delaying decision-making each time. This had nothing to do with the AP's lack of budget or staff capacity. Nothing would have prevented the AP, for example, from sending a simple note to SNCF sometime in the last four years with some simple questions. For example, whether SNCF is a data controller in claiming the date of birth of Dutch train passengers who want to buy a TGV ticket, and what the legal basis for that claim is. The AVG also allows regulators to investigate in another EU country.

The AP says that most travellers nowadays buy tickets electronically that require them to give up their personal data anyway. That is probably true in the Netherlands, but that is precisely the result of the AP's decade-long refusal to protect train passengers' privacy. Instead of taking responsibility for the damage it has allowed itself to cause with its policy of tolerance, the AP is now trying to pretend there is a fait accompli. This is in direct contradiction to what the Council of State's interim relief judge said in 2020 in proceedings I conducted on the same matter. The abolition of privacy-friendly options to buy train tickets is at the expense and risk of NS and other carriers. At least, if we still live in a constitutional state.

Ireland's privacy regulator has been known to keep companies like Facebook out of the wind for spurious reasons. The Dutch regulator now seems committed to keeping railway companies out of the wind, probably for political reasons. At least, I wouldn't know of any other explanation. That this fundamentally affects the independence and credibility of supervision, the AP seems to take for granted. Of course, I hope the AP will still come to the conclusion in the objection procedure that it cannot simply look away from my enforcement request. But after my experiences over the past decade with the AP, my expectations are not high. I will probably end up in court again."

Jonker's full appeal (pdf) can HERE be downloaded.

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AP will not investigate registration of data with international train tickets - Security.NL