Court in The Hague misses the point conclusively in Citizens v Plasterk case
Today, the Hague court did ruling in the case Citizens vs Plasterk. In this case, a coalition of citizens and organisations (including Privacy First) demanded that the AIVD and MIVD stop receiving and using ("laundering") illegally collected foreign intelligence on Dutch citizens, for example through the US NSA's infamous PRISM programme. Unfortunately, the court rejected all claims in the case. Here are some initial observations from our side.
A positive aspect of the verdict is that the court found all plaintiffs (citizens and organisations) admissible. For Privacy First, this represents an important endorsement of our Passport Trial at the Supreme Court, where such admissibility will take centre stage. However, this ray of hope is overshadowed by the way the court in The Hague handled the case Citizens vs Plasterk dealt with substantively. First of all, the court lacked factual investigation: no witnesses and experts were heard by the court at all, although this had been offered to the court beforehand and the law provides ample opportunities for this. It is also striking that in its judgment, the court considers less strict legal safeguards necessary when it comes to the mass exchange of raw data in bulk. For such exchange, however, precisely stricter legal safeguards are needed, as this data mainly concerns innocent citizens. In addition, the court wrongly distinguishes between metadata (traffic data) and the content of communications, while both types of data often overlap and require the same high level of legal protection. The court also misses the point entirely when it finds that the statutory foreseeability requirement (including privacy safeguards) of Article 8 of the European Convention on Human Rights (ECHR) would apply to a lesser extent in the international exchange of data between secret services. In the Netherlands, the legal basis for such exchange is, for now, a relatively obscure legal provision: Section 59 of the Intelligence and Security Services Act (Wiv). This article falls far short of the modern requirements that Article 8 ECHR places on such a provision. In essence, the current practice of exchanges between AIVD/MIVD and foreign secret services therefore takes place in a legal vacuum, a legal black hole. In Privacy First's view, the Hague court's current ruling amounts to legal laundering of this practice. Privacy First expects higher courts to find this situation in violation of Article 8 ECHR and views the appeal to the Hague Court of Appeal with confidence.