Lawsuit Privacy First against ANPR mass surveillance
Standing policy of Privacy First Foundation is to challenge mass privacy violations in court and have them declared unlawful. In recent years, Privacy First successfully did so against the central storage of everyone's fingerprints under the Passport Act, against the storage of everyone's communication data under the Telecommunications Retention Act and (in coalition) against mass risk profiling by the System Risk Indication (SyRI). An issue that also lends itself ideally to such litigation concerns the Dutch legislation on Automatic Number Plate Recognition (ANPR) as it applies under the new art. 126jj Sv since 2019.
Violation of European privacy law
Under the ANPR law, the license plates and locations of millions of cars in the Netherlands (i.e. everyone's travel movements) are continuously stored for four weeks in a central police database for purposes including investigation and prosecution, regardless of whether one is suspected of anything. This is totally unnecessary, totally disproportionate and also ineffective, several independent studies have shown in recent years. Moreover, supervision is lacking and the system can easily be abused, confirmed research by NRC Handelsblad, among others. The current ANPR law thus constitutes a massive privacy violation and simply does not belong in a free democratic constitutional state. Privacy First has therefore decided to file a lawsuit against the State to invalidate the ANPR law on the grounds of violation of European privacy law.
By the end of 2021, already summary proceedings of Privacy First against the ANPR Act took place. In this case, however, the District Court of The Hague ruled that there would be no sufficiently urgent interest in these summary proceedings. This ruling was incomprehensible, as a daily massive privacy violation by definition involves an urgent interest to have that violation legally tested and stopped. Privacy First subsequently decided to pursue this case as proceedings on the merits in which all relevant points of law will be addressed. Today, Privacy First filed a comprehensive subpoena with the state attorney general to that effect. The full summons can be found here (pdf).
The ANPR legislation at the heart of Privacy First's lawsuit is primarily concerned with the mass collection and storage of everyone's "historical" ANPR data, also known as "no hits". This should be distinguished from the long-standing police practice whereby license plates of suspicious persons (so-called "hits") are real-time can be used for detection.
Via Pro Bono Connect has Privacy First the law firm CMS engaged to conduct both the summary proceedings and the proceedings on the merits for us. Meanwhile, this lawsuit is also supported by the Digital Freedom Fund. If necessary, Privacy First will pursue the case to the highest courts, including the European Court of Justice in Luxembourg. Given the European case law on the matter, Privacy First considers the likelihood of a successful trial to be extremely high.