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Hague administrative law judge on Passport Act: "Come back when it's too late".

In addition to the Privacy First foundation's civil Passport Process various Dutch citizens went to the administrative courts themselves last year to challenge the mandatory storage of fingerprints under the new Passport Act. Of all these individual court cases, that of the Hague Louise van Luijk by now the most advanced. Yesterday, however, the Hague administrative judge did a very disappointing statement: her case was declared unfounded, mainly because, according to the judge, the situation Louise objects to would not yet exist. This situation is currently as follows: when applying for a new passport or ID card, you have to provide four fingerprints. Two of those fingerprints plus your digital face scan will then appear in a (remotely readable) RFID chip in your passport or ID card. This is mandatory under the European Passport Regulation. All four of your fingerprints taken and your facial scan are also stored in a municipal database. This is mandatory under the new Dutch Passport Act of June 2009. In the future, all this data (fingerprints + facial scans) will be 'transferred' from your municipality's database to a new, national database. At least that was the main reason for the introduction of the new Passport Act. However, that Act's provisions on the national database have not yet come into force. In fact, the national database is not there yet and is unlikely to be there again. After all, the Lower House is now against it ("advancing insight") and the official development of the database seems to have been halted some time ago, partly because of problems in its technical design.

The 'decentralised' municipal storage of fingerprints and (2D, soon to be 3D?)facial scans originally functioned as an "interim phase" towards "central" national storage for a wide range of purposes, including investigation and prosecution, counter-terrorism, disaster response, intelligence work at home and abroad, etc. The "problem" now, however, is that this national database is unlikely to happen. Meanwhile, all Dutch municipalities are saddled with a huge load of fingerprints and facial scans of dubious quality, in municipal databases whose security cannot be 100% guaranteed. According to experts, this data can also NOW already be requested by police, justice and intelligence services, namely under already existing laws and regulations outside the new Passport Act. (For the lawyers among you: see, for example Art. 126nc Sv.) This applies at least to facial scans and presumably also to fingerprints, we recently understood from the Ministry of Security and Justice itself.

The Hague court now says: the provisions in the new Passport Act on the national database, detection and prosecution etc have not yet come into force, so what are you worried about. In doing so, however, the court ignores 1) the imminent violation that emanates from entry into force of the relevant provisions in the new Passport Act and 2) the fact that the risks and objections to storage in a national database apply equally to the current storage at municipalities. The court could and should have included both aspects in its ruling: both Dutch and European, 'Strasbourg' law leave plenty of room for this.

All in all, it makes judgment of the court therefore gives a contrived, evasive impression. Perhaps the court wanted to leave a real judgment on the new Passport Act to the House of Representatives? The last paragraph of the judgment does suggest so:

"For the sake of completeness, the court considers that it has noted, with the claimant, that there is public debate about the desirability of storing and checking fingerprints. In this context, the claimant has argued that political support for the (...) legislation has changed. However, these circumstances do not affect the legality of the legislation. It is not for the court to rule on such circumstances. Any changes in political support must be reflected within the political decision-making process."

Privacy First views both the upcoming deliberations of the Lower House and Louise van Luijk's appeal to the Council of State with confidence. After all, the Council of State also has some ground to make up in this area, as evidenced, for example, by the recent WRR report iGovernment in which members of the Council of State themselves appear to admit that they had not previously followed this dossier with sufficient focus. Indeed, in the parliamentary preliminary stage of the new Passport Act, the Council of State merely kept quiet about it. Soon, they will still be able to give a critical opinion on the Passport Act.

Postscript: A striking newspaper article on the verdict in Louise's case can be read in the Today's rush hour (p. 7).