Trouw, 18 February 2015: 'Opstelten must convince judge of retention obligation'

“Kick-off of case on whether call and internet data is rightly stored

If you add up the list of serious critics of storing the calling and Internet behaviour of all Dutch citizens, then Minister of Justice Ivo Opstelten seems to be in for a tough time in court today. The Dutch Data Protection Authority (College Bescherming Persoonsgegevens) ruled the day before yesterday that the invasion of privacy was too severe.

Earlier, criticism also came from the Senate, where Minister Opstelten is due to come and explain the issue in early March. And from the Council of State, which advised the minister to withdraw the data retention obligation.

That retention obligation, introduced in the Netherlands in 2009, means that historical call and internet data of all Dutch citizens is stored by companies such as KPN, UPC and XS4ALL. If someone makes a phone call, the duration, location, phone numbers, names and addresses (at least if it is not a prepaid phone) of the call partners are stored for 12 months. Data on e-mail traffic or an internet session are stored on the provider's server for six months. Actually, only the content of calls and messages is not stored. The Dutch law stems from the so-called European Data Retention Directive. But that directive was declared invalid by the European Court of Justice in April last year. Retroactively, meaning that Europe's highest court ruled that the retention obligation never existed. The main argument for deciding this: storing data of all citizens, even if they are not suspected of a crime, is too great an invasion of privacy.

Immediately there were calls in the Netherlands to abolish data retention here too. But Opstelten decided otherwise. He announced a number of legal adjustments, including the introduction of a judicial test before investigative services can access the data. Until then, however, he does not intend to suspend the data retention obligation.

A number of organisations, including Privacy First, the Dutch Association of Criminal Defence Lawyers, journalists' union NVJ and the Dutch Lawyers Committee for Human Rights, want to change that today via summary proceedings. Waving to the European Court's ruling, the parties are convinced they stand a good chance in court: after all, the Dutch regulations violate European fundamental rights.

So why is Opstelten holding out anyway? His main argument: the retained data are necessary for tracking down and trying serious criminals. For example, they are used to prove that a suspect was at a certain place at a certain time. (...) It is now up to the court in The Hague to weigh that interest against the right to privacy. With that, the issue surrounding the retention obligation has become a classic case of security versus privacy. The ruling is expected in a few weeks."

Source: Wed 18 February 2015, p. 11.