Interlocutory appeal against telecommunications retention obligation

A broad coalition of organisations and companies is starting summary proceedings against the State. Among others, the Privacy First Foundation, internet provider BIT, the Dutch Association of Journalists and the Dutch Association of Defence Counsel are demanding the abolition of the Telecommunications Retention Obligation Act. The law violates fundamental fundamental rights that protect private life, communications and personal data, both the Council of State and the European Court of Justice previously ruled. Nevertheless, the Dutch government refuses to disapply the Telecommunications Data Retention Act.

On 8 April 2014, the European Court of Justice ruled on the European Data Retention Directive 2006/24/EC in its entirety and retroactively nullified. According to the Court, the long-term recording of communication data of everyone, without concrete suspicion, violates the fundamental right to privacy. According to the Court, objective criteria must be applied to determine the need for collection and storage, and there must be prior control by an independent authority or court. Unlimited indiscriminate collection of metadata (traffic data) in the context of so-called 'mass surveillance' is not allowed, according to the Court.

In the Netherlands, regulations in this area are laid down in the Telecommunications Retention Act, which largely corresponds to the Data Retention Directive. Under the law, telecom companies and internet service providers must retain various data on internet and telephony use for six to 12 months so that the Justice Department can use it for investigation and prosecution. The Council of State recently ruled that the law violates fundamental rights protecting private life, communications and personal data. However, the Dutch government is ignoring the State Council's opinion and refuses to disapply the law. Compliance with the law will be enforced.

Vincent Böhre of Privacy First: "By this mass surveillance citizens' privacy rights are being massively violated. It is unacceptable that the Dutch government continues to insist on this after the highest European court clearly said back in April that this privacy violation is not allowed."

Thomas Bruning, secretary of the Dutch Association of Journalists: "Telecom companies and internet providers are now obliged to keep a large amount of data on the communications of all citizens. Also of journalists. And they have to provide that data to the government on request. There is no guarantee of source protection."

"The Dutch regulations are contrary to applicable European fundamental rights," argues Fulco Blokhuis, partner at Boekx Lawyers, who has since issued a subpoena. "This is as disturbing as it is undesirable. Enforcing this law is unlawful, both towards citizens and towards companies that have and must keep traffic data under their control."

Alex Bik of internet service provider BIT: "When the law was introduced, the Dutch government hid behind the argument that this was just what Europe wanted, but now that the European regulation has been retroactively abolished, that argument suddenly no longer applies. That's not right."

Otto Volgenant of Boekx Advocaten: "Now that Minister Opstelten of Security and Justice does not want to abolish the Dutch law for the retention of telecoms data, we are going to ask the court to put the law out of force, or prohibit it from still being applied. We will file summary proceedings very soon."

Update 12 January 2015: The summary proceedings against the State over telecom data retention will take place in a public court hearing on Wednesday 18 February 2015 at 11am at the District Court of The Hague. Meanwhile, the renowned Dutch Lawyers Committee for Human Rights (NJCM) joined the coalition of claimant organisations. Click HERE For the subpoena (pdf), click HERE For the press release of Boekx Lawyers and HERE for the report that appeared at the Telegraph this morning.

Update 30 January 2015: A hearing ("roundtable discussion") on telecom data retention obligations took place yesterday in the House of Representatives. Click HERE for the schedule of the hearing (pdf) and HERE for Privacy First's preliminary discussion note to the House of Representatives (pdf). The hearing mainly addressed the lack of necessity and proportionality of the current data retention obligation. Other aspects brought in by Privacy First related to the social chilling effect and possible function creep (purpose shift) of the retention obligation.

Update 13 February 2015: today, the state attorney filed a Statement of Reply to the summons on behalf of the State; click HERE (pdf, 9 MB). The admissibility of the plaintiff organisations will not be challenged by the State, the state attorney informed our lawyers by telephone. This will allow the proceedings to focus immediately on the substance rather than the procedural requirements of the case. This is a groundbreaking development: in similar lawsuits, the admissibility of plaintiffs was almost always challenged by the State. A crucial court case on such admissibility (Passport Trial against fingerprint storage) is currently being litigated by Privacy First against the State in the Supreme Court. Privacy First considers the recognition of admissibility by the State Attorney General in the summary proceedings on the telecom retention obligation as strong support for this and future litigation around the right to privacy. Moreover, at a time when individual citizens' access to justice is increasingly under financial pressure, the admissibility of civil society organisations like Privacy First is an important safeguard for a functioning democratic rule of law.

Update 18 February 2015: In front of a full house (many officials, citizens, students and journalists), Privacy First et al. and the State crossed legal swords today; click HERE For our lawyers' plea (pdf) and HERE for the country lawyer's pleading note (pdf). The judge listened attentively and asked no questions. The date of the verdict is tentatively set at Wednesday, 11 March 2015.

Update 11 March 2015: In a landmark ruling, the court today struck down the Telecommunications Retention Act! Read HERE our news release.