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Lawsuit over privacy 'anonymous' public transport chip card

On 20 August 2019, the Gelderland District Court will hear two court cases brought by train passenger Michiel Jonker against the Personal Data Authority (AP) regarding the anonymous OV-chipkaart.

Anonymous OV chip card turns out never to have been anonymous

Jonker made enforcement requests to the AP from 2014-2018 for violation of his privacy by Dutch Railways (NS) after NS abolished paper train tickets in July 2014. The AP initially refused to investigate this, whereupon Jonker went to court. After a court ruling in 2016, the AP still had to investigate. Jonker believes NS discriminates against travellers if they choose to maintain their privacy with an anonymous OV-chipkaart. Among other things, passengers lose their benefit-hour discount and are thus pressured to give up their privacy. Moreover, it has since emerged that even the anonymous card is not truly anonymous, which means that NS has been enforcing processing of personal data since July 2014.

The court will hear two proceedings brought by Jonker jointly. Jonker: "I asked for that and am happy with it, because it is actually one and the same case. The AP split it into two parts in 2016, probably in an attempt to avoid having to thoroughly investigate the second part."

Price discrimination

The first proceeding concerns price discrimination against holders of anonymous OV-chipcards who also have a benefit-hours season ticket. NS refuses to give them the benefit-hours discount that travellers with personalised OV-chipcards do receive. Jonker: "The AP says NS is allowed to do that because NS has included it that way in its general terms and conditions. According to the AP, this then constitutes a contract as referred to in the General Data Protection Regulation (AVG). I dispute that. NS can put all kinds of things in its general terms and conditions, but if it violates the law, then it is unlawful. The AVG is not meant to be a license for arbitrariness by companies that want to collect personal data."

Anonymous is not really anonymous

The second procedure deals with the fact that even the "anonymous" OV-chip card is not anonymous. Indeed, each card has two unique numbers on it, allowing the card and its holder to be tracked. After the AP raised new questions about the OV-chip card in March 2019 in a third case, also brought by Jonker, it emerged that the balance of the anonymous OV-chip card is not actually "loaded onto the card", as had been communicated to train passengers so far. Instead, the balance is transferred to the back-office of the company Translink Systems (TLS), which handles payments on behalf of NS. As a result, every time someone checks in or out with an anonymous card or loads balance, the time and location of the anonymous card are recorded. In August 2019, Jonker heard that this had already been brought to his attention by a research group of scientists in 2010. Despite this, the AP then did nothing for nine years.

Jonker: "I was only recently alerted to that investigation, and feel betrayed. It involves about five million holders of anonymous public transport chip cards, who were fooled by NS for nine years, while the AP knew this was happening but looked away. Even in the court-ordered investigation in 2016, this did not surface. Only after I filed a third case in 2018, and an appeal this spring, did the AP finally start asking the right questions."

In a recent interview with NRC Jonker stressed that the AVG only provides protection if it is enforced.

Jonker is supported in the case by the Privacy First Foundation and Society For Better Public Transport.

The public court hearing will take place at Tuesday 20 August 2019 at 10:30am at Gelderland District Court, Walburgstraat 2-4 in Arnhem. Case numbers: ARN 18/546 and ARN 18/1487. Directions and visiting information: