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Hague court: central storage of fingerprints unlawful

In a landmark ruling, the Hague Court of Appeal today ruled that the central storage of fingerprints under the Passport Act is unlawful. In a so-called 'general interest action', Privacy First, together with 19 co-claimants (citizens), had submitted this legal question to the Court. In February 2011, the District Court of The Hague deemed Privacy First inadmissible. As a result, the court did not reach a substantive judgment on the Passport Act. The Court of Appeal declared Privacy First still admissible and set aside the court's judgment. The court also considers central storage of fingerprints unlawful for violating the right to privacy. Central storage of fingerprints under the Passport Act thus appears to be off the table for good.

In May 2010, Privacy First et al. sued the Dutch state (Ministry of the Interior) over the central storage of fingerprints under the new Passport Act. Such storage was particularly intended to prevent small-scale identity fraud with passports (look-alike fraud) to be prevented.

Partly due to pressure from Privacy First's lawsuit, fingerprint storage was stopped in the summer of 2011. The Hague Court of Appeal's ruling makes any future central storage of fingerprints legally impossible: the Court considers the central storage of fingerprints an "inappropriate means" to prevent identity fraud with travel documents. According to the court, this "cannot lead to any other conclusion than that the invasion of privacy formed by the central storage of fingerprints is not justified. The court should have granted Privacy First's claim to that extent." (Par. 4.4.)

This represents a major victory for Privacy First and for all citizens who have opposed centralised fingerprint storage in recent years. The court's ruling also paves the way for Privacy First (and other civil society organisations) to in the public interest continue to pursue court cases to preserve and promote the right to privacy, for example, the new lawsuit of Privacy First et al. against the Dutch State following the NSA affair. Recently, the State Attorney General also deemed Privacy First admissible in this case. These developments provide significant support for Privacy First to continue litigating for everyone's right to privacy in the years to come.

Read HEREpdf The entire judgment of the Court of Appeal of The Hague (pdf); also published on
Click HERE for our lawyers' news release at bureau Brandeis. Previously, Privacy First was represented in this case by SOLV Lawyers.
NRC Handelsblad got the scoop from us; click HERE.

Update 21 May 2014: the Dutch state turns out to be a bad loser: this week, the country's lawyer filed cassation against the Hague Court of Appeal's ruling with the Supreme Court; click HEREpdf for the cassation summons (pdf). The State wants Privacy First to still be declared inadmissible and also asks the Supreme Court to still declare the central storage of fingerprints lawful. This may not happen. Privacy First is considering what steps to take in its defence.

Update 21 November 2014:  Today, Privacy First et al filed their defence to the State's cassation summons with the Supreme Court; click HEREpdf for the document (pdf). In cassation, Privacy First c.s. are assisted by Alt Kam Boer Lawyers in The Hague; this law firm specialises, among other things, in civil-law cassation. On behalf of the State (Ministry of the Interior, BZK), the national lawyer today submitted a written explanation to the earlier cassation summons; click HEREpdf(pdf). Next steps may include written reply and rejoinder, followed by an opinion ("opinion") of the Attorney General to the Supreme Court (to which Privacy First et al can still respond) and a ruling ("judgment") by the Supreme Court in mid-2015.

Update 5 December 2014: today, Privacy First et al had a procedural Saint Nicholas present delivered to Minister Plasterk: our written response ("rejoinder") to the State (BZK)'s recent explanation to the earlier cassation summons. Click HEREpdf for the document (pdf). The State also filed a brief response ("reply") to Privacy First et al's recent defence; click HEREpdf(pdf). The date of the Attorney General's opinion will be set at the Supreme Court on 9 January.

Update 12 January 2015: The opinion ("conclusion") of the Attorney General to the Supreme Court is scheduled for 10 April 2015.

Update 12 March 2015: On 20 February last (much earlier than expected), Advocate General Jaap Spier delivered his opinion ("opinion") on the case to the Supreme Court; click HEREpdf (pdf, 7 MB). What is particularly striking about A-G Spier's opinion is its conservative content and tone. Moreover, the A-G erroneously assumes that the challenged provisions of the Passport Act never reached the stage of legislation. While the A-G does uphold Privacy First's admissibility, he does so on the wrong legal grounds. He also completely ignores the substantive privacy issue, wrongly assumes that this case could also have been brought before the administrative court and wants Privacy First et al. to be ordered - wrongly - to pay the costs of the proceedings. Within the formal 2-week deadline, Privacy First therefore filed a response (so-called "Borgersbrief") to the A-G's opinion with the Supreme Court; click HEREpdf (pdf). No such response was submitted by the country's lawyer. The final word on the matter has thus been given to Privacy First. We now await the Supreme Court's ruling ("judgment") later this year.

Update 28 May 2015: Against all odds, the Supreme Court has declared both Privacy First and all co-claimants inadmissible. Click HERE for the ruling and HERE for our comments.