Judicial tunnel vision in Utrecht ruling on fingerprints in identity card

On Friday, July 15, the Utrecht preliminary relief judge rejected a conscientious objector's request for an identity card without fingerprints. In addition to our first reaction at BNR Peptalk in this regard, Privacy First would like to bring the following points to your attention:

1) The current Utrecht verdict concerns the application for interim relief and is therefore only provisional in nature. The judgment has no binding effect in the proceedings on the merits and can be reversed in those proceedings. This also applies to similar court cases currently in play before other Dutch courts.

2) What is striking about the verdict is that the judge relies solely on the Passport Act and completely ignores other relevant legislation. For instance, the Code of Criminal Procedure and the Intelligence and Security Services Act are not mentioned anywhere. Under these laws (respectively Art. 126nc Sv. and Art. 17 Wivd 2002) police, justice and intelligence agencies can in all likelihood request fingerprints, if not from municipalities, then from the manufacturer of passports and ID cards in Haarlem (Morpho, formerly Sagem). This will not change now that the retention period of fingerprints in municipal databases is is greatly reduced.

3) It is also striking that the judge calls the (fight against) travel document fraud a "major interest" without substantiating it. Fingerprinting was originally intended as a tool against so-called look-alike travel document fraud. According to statistics from the Royal Military Police, this type of fraud in the Netherlands with Dutch travel documents occurs at most a few hundred times a year, mainly by asylum seekers. These figures have never been refuted by the state advocate. Taking fingerprints from all Dutch citizens for a new travel document (passport or ID card) is therefore completely disproportionate and thus unlawful.

4) During the General Consultation (AO) with the House of Representatives on 27 April last. Minister Donner has stated that biometric fingerprint verification does not work in 21-25% of cases. Thus, the current system does not work and the legislation has therefore proved technically unworkable. Going ahead with it is therefore pure capital destruction.

5) Since biometric fingerprint verification does not work in a technical sense, it may make citizens wrongly suspected of identity fraud. For example, in the future, somewhere at an airport abroad, with all the consequences (missed flight, unlawful detention, etc.). Continuing fingerprinting therefore actively puts citizens at risk.

6) Minister Donner promised during the same AO on 27 April last that the Dutch identity card would become "fingerprint-free" as soon as possible. Against the Amsterdam District Court, the state attorney recently stated that this commitment is binding. Donner's commitment means that it can no longer be maintained that fingerprinting is necessary for ID cards.

7) However, meanwhile clarified that the necessary amendment to the Passport Act will not be submitted by the government to the Council of State until mid-2012. It is hard to see why fingerprinting for ID cards cannot be stopped earlier, if necessary by technical means. Despite the fact that collection is currently still 'mandatory' under the European Passport Regulation, the European Commission will in all likelihood not resent earlier discontinuation by the Netherlands (given the huge error rates in biometric technology). This also given the fact that the Netherlands is the only EU member state to have designated the ID card as a legal travel document instead of an identity document, making the European Passport Regulation (and thus the obligation of fingerprints) applicable to the Dutch ID card - entirely unnecessarily - in addition to the Dutch passport. Moreover, swift discontinuation only provides the Netherlands with benefits rather than risks through shorter waiting times at municipal counters, cost savings and exclusion of the risks associated with the current taking of fingerprints and RFID technology in the chip.