New Michiel Jonker lawsuits against privacy violations on public transport
Court hears public transport passenger appeal on four structural privacy breaches. Personal Data Authority refuses to investigate or enforce these breaches.
On 16 December 2019, the Gelderland District Court will hear Michiel Jonker's appeals against the rejection of two enforcement requests by the Personal Data Authority (AP) in two court sessions immediately following each other. In July 2018, in two enforcement requests, Jonker requested the AP to investigate and enforce regarding:
- The refusal by transport company Connexxion Of privacy-friendly, cash payment for one-way bus tickets on the bus.
- The refusal of refund of remaining balance on anonymous OV-chip cards if the holder does not provide his name and address details to Dutch Railways (NS).
- The refusal of international train tickets by NS employees at station counters if buyers do not provide NS with their name and address details.
- Charging, since 2 July 2018, of additional "service costs" if holders of anonymous OV-chip cards pay cash to top up the balance on these cards.
The AP refused to seriously investigate these breaches of privacy because, according to the AP, an "overall (desk) investigation" would have already shown that there was no breach. According to the AP, the processing of personal data in some cases has not been shown and would therefore not be an issue (2, 3, 4). With regard to NS' sale of international tickets from foreign transport companies, the AP initially declared itself wrongly incompetent, but now claims, after Jonker objected to it, that Jonker would not have requested enforcement on this point. With regard to the refusal of cash payment on the bus (1), the AP finds that the invasion of privacy is acceptable. Also, following Connexxion, the AP gives the impression that there are all kinds of other privacy-friendly payment options available, while in Jonker's hometown of Arnhem there is only one place where this is possible, but on payment of an extra surcharge. Jonker believes this is privacy discrimination: treating people who want to continue travelling with privacy at a disadvantage.
Jonker: "These cases are about three things. First, that people can use public transport while maintaining privacy, not just in a far-fetched theory, but simply in day-to-day practice. What matters then is that there are enough outlets where you can pay cash for all types of tickets, and without having to pay an extra surcharge vis-à-vis travellers who by necessity resign themselves to having their personal data processed without their consent. And that transport companies also do not mislead travellers, or secretly collect their data.
Willful collection of personal data
Second, the issue is that transport companies should not be allowed to collect personal data arbitrarily, if they just wave some general slogans, e.g. "safety" or "fraud prevention", without making it clear what specific, concrete problem they are actually dealing with.
Supervisor must enforce
Third, the issue is that as a regulator and enforcer, the AP cannot simply refuse to investigate something. Now the AP draws the conclusion from its own refusal to investigate that there is therefore nothing wrong. That is like a police officer refusing to enter the house in question after reporting a burglary, but instead saying: I'm not going in there, so I don't see a burglary, so there is no burglary, so I don't need to go in there. There is a very simple word for that: looking away. Many Dutch regulators, including the AP, have quite a tendency to look away and thus engage in ostrich politics. But we do pay these regulators from our tax money. We don't do that to make them look away."
Asked if, for example, he does not consider "security" a serious issue then, Jonker replied: "Of course I think this is a serious issue. That is precisely why it deserves serious treatment. But that is something quite different from abusing the issue of security to start tracking exactly which routes millions of innocent travellers take at which times. I am in favour of a serious analysis of concrete safety problems, followed by tailor-made solutions to actually counteract those specific problems. Connexxion has not made a plausible case that cash payments would seriously compromise safety on even one bus line in the region. I have lived in Arnhem for more than 20 years. I took line 3 to the zoo on a beautiful, sunny morning. Never knew that was unsafe... It has to remain proportionate. But proportionality can be understood very subjectively. Then, as a transport company, you can demand anything from passengers. That is currently the basic attitude of the AP. So if transport companies want something, the AP thinks it is necessary, and therefore does not want to enforce or seriously investigate."
Asked about his expectations about the lawsuits, Jonker replied: "Since the Gelderland District Court's rulings in two other appeals, on 5 September this year, I have been very sceptical about the quality of this body's jurisprudence. I appealed those rulings to the Council of State. I have asked the court to wait to hear these new cases until the Council of State has ruled, to avoid a pointless repetition of cases. Also, preliminary questions have now been submitted to the Court of Justice of the European Union on travel data of public transport users. I would like to wait for that too, to save all parties time and money. But the court unfortunately rejected that request immediately."
Court hearings will take place on 16 December 2019 at 10:30 am at the Gelderland District Court, Walburgstraat 2-4 in Arnhem. Click here for Jonker's appeal (pdf) in the case over the refusal of cash payment on buses by transport company Connexxion.
Jonker is supported in both cases by the Privacy First Foundation and Society For Better Public Transport.
Update 17 December 2019
The two court cases were heard by a three-judge panel of the court on 16 December. A representative of Privacy First was present as an observer. Jonker had prepared a single pleading for both hearings, but the judge did not allow him to read it out. When asked, the presiding judge referred to the "laying to rest" of the so-called "New Case Procedure" as of 13 February 2018, and indicated that the court is now working on the basis of the so-called "professional standard", which no longer provides for the parties to make written prepared pleadings. Jonker: "Of course I had to resign myself to that at the hearing, after all, the judge decides what can be introduced at the hearing. But it is a sign of the state of our judicial system. In my opinion, refusing pleadings violates Article 6 of the ECHR (right to a fair trial), because in such a pleading the circumstances of the concrete case and its ethical implications can be directly clarified and discussed. Afterwards, I tried to check on the internet what can be found about this. A 2015 Home Office publication ("The practice of New Case Handling in Administrative Law") found that some judges share my view on this point." For Jonker's pleading note, click HERE (pdf).
Both sessions first dealt with Jonker's request that the cases be stayed pending rulings by the Court of Justice of the EU (CJEU) and the Administrative Law Division of the Council of State (ABRvS) on, in particular, the requirements for demonstrating a necessity for processing personal data in public transport. The AP, NS and Connexxion saw no reason to stay the cases. The court is going to consider it and will inform the parties of its position in due course.
In the first hearing, in addition to the question of whether a necessity for the privacy breaches has been demonstrated, the question of the precise scope of responsibility of data controllers such as NS also arose. Is NS responsible for the behaviour of its own counter employees, if they demand NAW data without necessity when purchasing international train tickets? Jonker argued that it is, and on this point the AP seemed to agree with him. In addition, Jonker argued that data processing responsibility should not be compartmentalised between (domestic or foreign) "controllers" and "processors".
For the first time, NS itself made a statement about the purpose with which NS requires identification when someone requests the return of the residual balance on an anonymous OV-chipkaart. According to NS, this is to create a "threshold-raising effect" to deter persons trying to return a stolen anonymous OV-chipkaart. Jonker pointed out that, if this is true, this is an illegal act by NS, as demanding identification to deter people is not lawful and NS is not authorised to do so. Jonker also pointed out that in the case of returning balances of more than 30 euros, personal data is indeed processed on behalf of NS, namely by Translink Systems (TLS).
With regard to the charging of so-called "service fees" when paying cash for recharging anonymous OV-chip cards with banknotes at the counter, with no equivalent, privacy-friendly alternatives, no new arguments were introduced.
The second court hearing dealt, among other things, with the question of whether necessity for processing personal data for the purpose of performing a contract (Art. 6(1)(b) AVG) can be inferred from arbitrary, generally formulated purposes established by a data controller (Connexxion), or whether there must also be an objectifiable, material necessity. Jonker argued that no necessity could be inferred from the documentation provided for refusing to accept cash in the Arnhem-Nijmegen region. Connexxion argued that there was no need to demonstrate such a need for this region, and not even to draw up a "risk profile per region or per bus line". Connexxion also saw no duty or responsibility for itself to provide alternative, accessible ways of privacy-friendly payment. This is because, according to Connexxion, the outlets are not determined by itself, but by the Arnhem-Nijmegen Urban Region. Jonker argued that when taking measures that infringe privacy, a data controller remains responsible for ensuring an alternative (subsidiarity principle).
Finally, Connexxion pointed out that Jonker is not obliged to use public transport. Jonker responded that public transport is not a "shop of trinkets" but an essential public utility function on which he and countless other people depend to participate socially.
Prior to the hearing, Connexxion had requested in writing that Jonker be ordered to reimburse its legal costs due to "manifestly unreasonable use of procedural law". Following a question in this regard from one of the judges, Connexxion withdrew that request at the end of the hearing.
Asked about his impression about Sessions, Jonker said: "If you look at the letter of the law and the intention of the legislator, I am in a strong position. But I now know from experience that that does not say everything about the outcome of court cases. It will partly depend on whether judges are willing to look not only at theoretical, general, unsubstantiated stories from NS and Connexxion, but also at how it works in actual practice, and how the various breaches of privacy reinforce each other. Cumulatively, this creates large effects that leave little of privacy."
Update 6 February 2020
The Gelderland District Court ruled in both cases on 4 February, and this one on 5 February published. The court declared both appeals unfounded, following the AP's arguments.
Jonker: "What I already suspected has happened again: the court has adopted the AP's arguments and repeats them again, but does not address arguments I have raised against it. The court either remains silent on that, or dismisses them without substantively substantiating why.
Asked for an example, Jonker replied: "For example, when it comes to the refusal of cash payment on the bus, the court, like the AP, refers to a "Social Safety in Public Transport Action Plan" jointly prepared by a conglomerate of governments and transport companies, but ignores what I said about the content of that plan. I argued that the text of that plan shows no need for the refusal of cash payment on the bus. The court states: there is a plan, it states a purpose, and so the processing of personal data is necessary. This is not case law, but parroting of an administrative body. In this way, the court poses itself not as an independent interpreter of the law, but as an extension of a conglomerate of polder organisations, and as an advocate of the administrative consensus formed within that conglomerate. That consensus is apparently that real privacy, as it existed in public transport until 2014, may and should be abolished. If administrative justice functions like this, you might as well abolish the separation of powers. And then I better hang up my law knowledge on the willows and retrain myself through a course on 'How to get in the good graces of those in power'. We see here that the breakdown of the rule of law has already taken place in the minds of judges, without them wanting to realise it themselves."
Asked about his next steps, Jonker says he will appeal to the Council of State. "I had requested that both cases be stayed pending a ruling by the Council of State in the case on privacy in public transport on which the court ruled on 5 September last year, because it overlaps with the current case in some crucial aspects. The court rejected that request because the cases do not overlap on all points. But that was not my argument either. After all, the cases are different. I had argued that the outcome of the current cases would be predictable if the State Council declared my appeal unfounded, so it made sense to wait and see if that happens. But so now I am forced to file another two separate proceedings before the State Council prior to that, and pay court fees for them. In this way, the court creates the biggest possible obstacle for citizens to get justice. This mentality is a worrying development in terms of preserving the rule of law. All I can do now is hope that the Administrative Law Division of the Council of State will deal with the matter differently, and that in the meantime, public opinion will increasingly wake up to what is happening here. Not only with our privacy, but also with our rule of law."
Omroep Gelderland, 5 February 2020: Arnhem privacy fighter gets judge wrong over anonymous travel
De Gelderlander, 5 February 2020: Arnhem privacy fighter Jonker catches bone in case over anonymous ov travel
Security.co.uk, 5 February 2020: Arnhem man loses cases over privacy in public transport
Tweakers, 6 February 2020: Interview with Michiel Jonker - privacy activist out of idealism and irritation.
Update 10 March 2020
On 6 March, Jonker filed an appeal with the Administrative Law Division of the Council of State against both court rulings. In his appeal, Jonker also addresses fundamental questions regarding "connectivity" and "authoritarian thinking". Jonker: "After the court rulings on 4 February, it was clear to me that there are two fundamental problems when it comes to privacy jurisprudence. The first problem is the trend of uncritically embracing the digitisation of everything, instead of making conscious choices in it: what is, and what is not (yet)? And if so, how can privacy be safeguarded in a real way? This is then called 'connectivity'. Unfortunately, not only companies and ministries are running after this trend, but also the regulator and some judges.
The second problem is the authoritarian way of thinking that accompanies it, but of which the regulator and some judges seem insufficiently aware. Human beings are reduced to a tool for the realisation of digital ambitions, and are then no longer seen as individuals with free will, responsibility and rights. Combined, these two trends lead to a totalitarian design of society if limits are not set in time. I hope the Council of State will do so now, citing Article 8 of the European Convention on Human Rights. That protects private life, which is more than just personal data."
In addition, for one of the four parts of his appeal, Jonker also filed a request for injunctive relief, asking the Council of State to order the AP to quickly intervene to stop the technical disabling of the so-called "ATB system" for the sale of international train tickets for the time being, until the AP has investigated it, in cooperation with other regulators within the EU.
Jonker: "The AP and the court ignored facts that I already brought to the AP's attention on 31 January 2019, namely that NS and other rail transport companies arguably intended to abolish the ATB system. That system has been used to sell privacy-friendly, international train tickets for decades. In February 2020, I learned that the ATB system was abolished in November 2019. As a result, when travelling by train to Germany or France, I am now required to give my name when I buy a ticket, and that name is then processed in a system. If I go to France, I also have to give my date of birth. However, in the court hearing on 16 December 2019, NS was silent on this. In this way, NS has not only abolished privacy in those tickets in collaboration with other transport companies, but also deliberately misled the court on this point. I want the Council of State to oblige the AP to start investigating the abolition of the ATB system now, and to require transport companies to maintain the ATB system as infrastructure technical until the investigation is completed, so that no irreversible situation arises."
For Jonker's full appeal, entitled "Praise of individuality - privacy, connectivity and authoritarian thinking", click here (pdf, 191 pp).
Update 26 November 2020
The Administrative Law Division of the Council of State has announced it will hear three Jonker appeals on privacy in public transport at a hearing on Monday 8 February 2021. The cases are as follows:
- Cash payment on buses; AP and Connexxion (case no. 2020-01625)
- Purchase of international train tickets, residual balance OV-chipkaart, service costs OV-chipkaart; AP, NS and possibly others (case no. 2020-01629)
- Privacy discrimination in OV chip card; de-anonymisation of "anonymous" OV chip card (case no. 2019-07478)
All three cases will be heard at the Administrative Law Division building at Kneuterdijk 22 in The Hague.
Update 26 January 2021
On 15 January last, Jonker submitted the grounds of his appeals supplemented because of recent developments. In his supplement, titled "Movement control and restriction of movement", Jonker argues that a combination of attitudes among transport companies, the Dutch state and some Dutch judges threatens to eliminate the fundamental right of Dutch citizens to freedom of movement while maintaining privacy, even in situations where there is no need to affect that fundamental right. He calls for an independent judicial review that respects the intent of applicable laws and treaties.
Due to personal circumstances related to Covid-19, Jonker is unable to attend the scheduled hearings on 8 February 2021. He agreed to answer questions from the Administrative Law Division in writing.
Jonker: "It is annoying, but it is no different. I hope the Department itself will look for ways to still allow the process to take place in a fair manner, partly in view of its social importance."
Update 15 February 2021
Due to a failing video link on February 8, the State Council postponed the hearing of Jonker's appeals until further notice.
Jonker: "It is very frustrating for all concerned. I understand the importance of a hearing where live exchanges of views can take place. If that is not technically possible, I am personally prepared to respond in writing to any questions from the Administrative Law Division of the Council of State, given the exceptional circumstances, and to input from other parties at the hearing, as recorded in the hearing notes. It is in the interest of all public transport passengers that the case is not adjourned indefinitely. It is up to the Administrative Jurisdiction Division to determine how much delay the case can tolerate, in other words, at what point the legal certainty of OV passengers requires that the hearing be continued in some way. As the saying goes: justice delayed is justice denied..."
Update 8 July 2021
On 5 July, the Administrative Law Division of the Council of State heard Jonker's three appeals on privacy in public transport in three consecutive hearings. Each hearing dealt with the AP's refusal to investigate (sufficiently) and its refusal to take enforcement action:
Session 1: Connexxion's refusal of cash payment on the bus.
Seat 2: Three breaches of privacy by NS:
(a) processing personal data when returning residual balance on "anonymous" OV-chip cards to the owner;
(b) NS demands personal data from passengers who want to purchase an international train ticket within the EU at the counter;
(c) NS charges extra service fees to travellers who want to pay at the counter in a privacy-friendly (and therefore cash) way to recharge their "anonymous" OV-chip card.
Seat 3: Three breaches of privacy by NS:
(a) missing anonymity of the "anonymous" public transport chip card sold until recently as "privacy-friendly", and NS' deception about it until it came out;
(b) privacy discrimination against holders of benefit-hour season tickets (VDU): they will not get benefit-hour discounts if they travel with an "anonymous" public transport chip card;
(c) privacy discrimination in the implementation of the Geld Terug Bij Vertraging (GTBV) scheme: holders of "anonymous" public transport chip cards will only get their money back if they actually de-anonymise their public transport chip card, which means that not only the delayed journey but also all other journeys can be registered by NS and/or TLS.
Jonker: "The seven privacy breaches dealt with in these three sessions paint a picture of how Dutch transport companies are collectively trying on all sides to seize travel data (places and times of people's private journeys), and to make it as difficult as possible for travellers trying to maintain their privacy. This is promoted by various ministries, other government agencies (e.g. CBS) and all sorts and bodies from so-called "civil society" (the polder). The Personal Data Authority refuses to act against it. The data theft is in full swing. It seems even judges don't want to stop it. My October 2019 analysis That there is a conglomerate of governments and companies in the Netherlands that wants to abolish real privacy in public transport is reaffirmed in this way.
If the Council of State is going to rule that this arbitrariness of transport companies in processing personal data is permissible, thus legalising that arbitrariness, then it is clear that privacy is no longer protected in law in the Netherlands and is therefore abolished in practice. The fundamental right to privacy will then no longer exist. Instead, privacy will then only be a favour granted to some people in some cases, arbitrarily and on instrumental grounds, e.g. political or relational grounds - but not to others. The government and large corporations are then allowed, without our consent, to penetrate deep into our private lives unhindered and to direct, reward and punish us through that means."
An interview with Jonker, video summaries of the three sessions and the integral video recordings of the sessions can be found on the Potkaars site: https://potkaars.nl/blog/2021/7/7/de-veronderstelling-dat-je-het-recht-hebt-anoniem-door-het-leven-te-gaan-ter-discussie-gesteld-door-de-ns
Volkskrant reporter column 6 July 2021: Privacy no longer exists, and we allowed that to happen ourselves
Update 22 November 2021: on 10 November 2021, the Administrative Law Division of the Council of State ruled on the three appeals lodged by Jonker against the AP's refusals to take enforcement action against the invasion of privacy in public transport:
- OV-chip card case: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RVS:2021:2509
- Case-Connexxion (cash payment): http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RVS:2021:2511
- Case-NS 3rd tranche (including international train tickets): http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RVS:2021:2514.
The State Council declared all appeals unfounded on all parts. Jonker says he will study the rulings in more detail when he has "regained his energy" before drawing final conclusions. However, he would already like to say the following:
Jonker: "With these rulings, the State Council has abolished the right to privacy in public transport. Every individual passenger may be tracked and registered everywhere, without having to prove a specific need. It is sufficient, for example, that a transport company itself considers it 'efficient' to do so. According to the State Council's interpretations, the AVG does not protect against this. Articles 5 and 6 AVG have been rendered meaningless by the Council of State in this way. After transport companies such as NS and Connexxion had already effectively abolished privacy, the Council of State has now retrospectively provided that with legal approval and thus legalised it. I already have a analysis delivered to the Lower House and the Council of State about what is happening to privacy in public transport. The Lower House did nothing with that. Now the Council of State too appears to have almost completely ignored that analysis and my other arguments."
Asked if this is a blow to him personally, Jonker replied: "Yes, at least to the extent that I saw this coming for some time, as I did in a interview have indicated. It is good that the court sessions on 5 July this year were videotaped in full and published with that interview. That way, everyone can see for themselves the pathetic level to which the gentlemen judges lowered themselves at times. It is now definitively clear to me that the Netherlands is no longer a constitutional state on essential points, including the fundamental right to privacy. Last week, there was news that the chairman of the Administrative Law Division made a "sincere apology" with much fanfare for the fact that the Council of State had ignored all kinds of issues in the Supplements affair. I find such apologies utterly implausible and opportunistic. They are only given because the high court judges were caught out in that case and can no longer sweep it under the carpet there. Meanwhile, as the rulings in my appeals show, those judges just ramble on as executors of the power apparatus they are part of. I no longer see them as judges, but as prelates clad in the arrogance of power. Our rulers want us to have no real privacy anymore, but only eat grace bread insofar as they allow us to with their digitised systems, in the form of temporary favours. Like: you must trust that we will not follow you for a while now, even though we have broken all our promises on that point in the past..."
Asked what he will do next, Jonker replied: "First, I will now explore how best to relate as an individual subject - no longer a citizen - to the fact that we no longer live under the rule of law. Without privacy, there is no real freedom, and it becomes more difficult to defend or restore our freedom. For me, this is a great loss. I am also likely to seek support from kindred spirits, to see if there are opportunities for laying a foundation for a return of the rule of law. I understand that many people are not very concerned about this as long as there is bread on the table and can be celebrated from time to time. I take a different view, especially also with a view to the longer term.
Secondly, when I have regained my energy, I will see whether it makes sense to petition the European Court of Human Rights (ECHR) about these three judgments. I have already been advised that this is not likely, as the ECHR takes the same anti-rights-state stance as the Dutch Council of State in many cases these days. 90% of petitions are not even considered, and I understand that people in the ECHR's offices sometimes ridicule privacy cases. They resent what is happening in Poland with the constitutional court there, not because it is anti-rights - we don't even have a constitutional court in the Netherlands - but because it is not in line with the wishes of central powers in the EU. With Poland or the Brexit and Northern Ireland, the EU is waving the importance of 'the rule of law', but for the EU and the ECtHR, the rule of law and privacy are in practice mainly economic and political tools, not independent or intrinsic goals.
I will try to see if filing a petition in those circumstances can still be useful, as a signal or for documentation for later. For example, to make the responsibility for abolishing real privacy protection in public transport visible and demonstrable at all legal levels."
Privacy First supports Jonker should he decide to petition the ECHR.
Security.co.uk, 23 November 2021: Privacy activist loses appeal over anonymous public transport chip card
Tweakers, 23 November 2021: Personal Data Authority need not act against NS by Council of State
Technology, privacy and law, 10 December 2021: Privacy activist loses appeal over anonymous OV chip card!
Update 2 March 2022
on 25 February, Jonker sent an application to the European Court of Human Rights (ECHR, ECtHR), arguing that the three rulings of the Administrative Jurisdiction Division of the Council of State dated 10 November 2021 are not in line with Articles 8 and 14 of the European Convention on Human Rights (ECHR).
The English-language petition (a so-called "application") is entitled "Public Transport - a Railroad to Surveillance?". In the application, Jonker focuses on the importance of substantive justice. If the European Human Rights Convention is only interpreted formally and procedurally, the right to privacy is not adequately protected. Jonker: "It was quite a job to do it according to the rules of the European Court. In the end, it was a 993-page package: the application form of 13 pages, an annex of 19 pages and the remaining annexes: 961 pages - all printed single-sided and manually numbered through. I hope I have complied with all the rules. Should the European Court nevertheless declare my petition inadmissible, it would make it clear that, in practice, individual European citizens do not have access to the court that is supposed to protect their human rights. Of course, I hope the court sees that this is a serious matter: the possibility for Dutch and European citizens to travel by public transport without being constantly monitored. If we do not want to become China 2.0, then public transport while maintaining privacy is crucial."
Technology, privacy and law, 10 May 2022: Dutch public transport - a railroad to surveillance?
Update 6 October 2022
On 8 September, the European Court of Human Rights (ECtHR) declared Jonker's petition inadmissible and thus refused to hear the case. The court gave summary reasons for this decision: "On the basis of its jurisprudence (...), in the light of the material available to it and in so far as the cases complained of fall within its competence, the Court considers that they do not plausibly establish that there would be an infringement of the rights and freedoms referred to in the Convention or its Protocols and that the admissibility requirements in Articles 34 and 35 of the Convention have not been met." (translation by Jonker)
After consulting the case law referred to by the ECtHR (two previous ECtHR decisions), Jonker speaks of a "bizarre decision that fundamentally affects the credibility of the judicial protection that Article 8 ECHR is supposed to provide". The Court's refusal to even consider this case, according to Jonker, shows that "the privacy of public transport passengers is not protected at all by the judicial body which, when all other protection fails, is the only one left to provide, and should provide, a guarantee that Article 8 of the ECHR is effectively applied."
The ECtHR refers to two previous rulings in cases which the ECtHR found to be manifestly "essentially the same" are to the case put forward by Jonker. It seems as if the ECtHR did not consider it necessary to hear Jonker's case for that reason and therefore declared him inadmissible. The two cases referred to by the ECtHR both concerned companies that had dismissed some employees after monitoring them and finding misconduct. In those cases, the ECtHR concluded that the dismissal, despite the surreptitious processing of personal data, was not unlawful. The ECtHR seems to equate the covert monitoring of employees by their own employer, based on concrete suspicions, with the monitoring of the private journeys of millions of public transport users by transport companies.
Jonker: "The ECtHR wrongly equates the right of an employer to adequately monitor its own employees during working hours following a specific suspicion with a right of a transport company to collect private data of random travellers, without those customers being suspected of any offence. Basically, the ECtHR is saying two things here: 1. public transport passengers may be treated in terms of data processing as if they were not customers of the transport company, but employees of that company. And 2. In terms of data processing, public transport passengers may be treated as if they are under concrete suspicion. This way, of course, nothing is left of the right to privacy. If every private person is allowed to be treated like a suspected employee, then we are living in a surveillance society. Article 8(2) of the ECHR allows surveillance only insofar as it is necessary in a democratic society. That is ignored by the ECtHR in this way."
Asked what could explain this decision by the ECtHR, Jonker replied, "I cannot, of course, look into the mind of the judge in question. All I can rely on is the summary reasoning and the case law referred to. By not even taking up the case, the ECtHR is making it impossible to get clarity on this, because there is no legal remedy against this decision. In this way, the ECtHR obviously makes a mockery of the idea that there would be a cognisable right. But if I may guess at possible reasons, I see two. First, I think the ECtHR, with its huge workload and structural lack of staff capacity, very pragmatically wants to declare as many cases inadmissible as possible, and thus looks for reasons - pretexts if necessary - to do so. So then such a judge thinks: where can I find case law with which I can dismiss this case? He who searches will find, and if such a judge then sees something that seems useful at first sight, he thinks: why not? The fact that the case is completely different does not matter to such a judge, because the petitioner can no longer do anything anyway if the case is declared inadmissible. I think the immediate reason for the inadmissibility declaration can be very superficial and pragmatic."
Jonker sees a second possible reason in the fact that a transport ticket, for example a train ticket, is understood by the courts as a "contract" and for that reason equated with the employment contract an employee has with his employer. Jonker: "Here you see the political knock-on effect of neoliberalism in the views of judges who are supposed to interpret the law independently. They no longer wish to see that there is a difference between a contract an employee signed knowingly when he voluntarily accepted work, and the general conditions a transport company has unilaterally drawn up and imposes on millions of public transport passengers who depend on public transport. This is indicative of how the EU and apparently also the ECtHR have internalised a neoliberal logic that violates international conventions such as the ECHR. In my petition to the ECtHR, I pointed out the misuse of the contract concept and indicated that there is no democratic necessity for the relevant invasions of privacy. I indicated that the Council of State refused to review the case directly under the ECHR. But now the ECtHR itself also refuses to assess the substance of the case against the ECHR. Well, if the ECtHR refuses to hear my petition, then no arguments can be exchanged on the crucial issue of the relationship between a democratic necessity and the provisions in a contract drawn up by a company. There is then a legal silence that paves the way for the abuse of power to continue. There is then no legal protection." For Jonker's further analysis of the case law cited by the ECHR, see here (pdf).
Asked what conclusions he draws from the case, Jonker replied: "Legally, this is the end of the story. I note that both Dutch judges and the European human rights court refuse to protect the fundamental right to privacy in public transport. If those judges had been bribed with bribes, the outcome could not have been worse. This is just one example of how privacy is respected in name but in fact eliminated. One of the consequences is that little remains of my faith that we would live in a so-called 'rule of law'. Law - 'the rule of law' - has been reduced to a rhetorical device to serve certain political ends."
Jonker compares what is currently happening to residents' privacy in the EU to the three Polish divisions at the end of the 18th century. "European powers not only wanted to wipe Poland off the map as a real existing state, but, after the last partition, also tried to erase the memory of what Poland had once been. It took more than a hundred and twenty years before Poland resurfaced, in a new, different form. Today, we think the behaviour displayed by the great European powers at the time is criminal - just look at how we feel about Putin and his current attempt to partition Ukraine. Perhaps one day we will look the same way at the way European powers are killing our privacy today, with collaboration from judges at all levels. Those rulers and judges will not be punished, any more than Catherine the Great, the Habsburgs, the Prussian princes and their servants were punished at the time for what they did to Poland. With the failures and hypocrisy of so-called representatives of the European rule of law, I have recently begun to understand more about people who see the EU as an oppressor. I hope, for instance, that once the Ukrainians have ousted the Russian attackers, they will not subsequently surrender skin and hair to an increasingly imperialist EU, but will defend their freedom, including their privacy, even then. But I fear the worst."
He pulls a sour face. "I have consistently used my supposedly anonymous OV-chipcard since the beginning of this case in 2014, while I also paid 60 euros annually for my off-peak hours card that should have offered 40% discount, but was declared invalid by NS in combination with the anonymous OV-chipcard. So for eight years I paid 66% too much for my off-peak train journeys, plus a season ticket that NS did not allow me to use while maintaining privacy. Every year, this still amounts to several hundred euros. I will never get that money back, it was stolen by NS. This is the Netherlands, a country of white-collar thieves."
So is that the end of the story in terms of privacy in public transport? Jonker: "Perhaps not quite yet. In response to one part of the case, namely the demand for personal data in international train tickets, I filed a second enforcement request in 2020 for legal reasons. The AP has since launched an investigation in response. The SP has also recently submitted written parliamentary questions to the minister on the matter. So that is still ongoing. But given the lack of European or international legal protection, I wonder if there could be enough political pressure to start taking the privacy of international train passengers seriously. And even if it does, it would be no more than a drop in the ocean. Because the systematic, large-scale privacy violation with the Dutch OV-chipkaart system, it is just allowed - that is, tolerated by the AP and legalised or not dealt with by judges."
Asked what conclusions he draws for himself, Jonker replied: "I followed the legal route to the end in this case, partly to test whether or not there is ultimately any legal protection in the area of privacy. If you look at it as an experiment, the outcome after eight years of litigation is clear: there is no serious legal protection, the AVG and Article 8 ECHR are in practice being abused as waxworks. There are still a few other privacy proceedings pending, which I want to finish neatly, but I don't expect much more from them. If the law fails, politics remains. But I am not a political animal. And besides, developing political strength depends on people's consciousness. Maybe I can contribute something to privacy awareness in a modest way."
Jonker says that in one of his justifications to the State Council, on 29 April 2020, he wrote about what he calls "the banality of the third evil". "That chapter ended as follows: 'This third evil, the creeping elimination of human consciousness, cannot be conquered spectacularly with tanks or missiles, but only through the harnessing of individual and collective consciousness, the resulting collective will, and the resulting legislation, justice and law enforcement.' So I think the key is to work on new consciousness as a basis to grow beyond the current, technocratic tunnel vision. The real problem is humanitarian, not technical. Only by putting humanitarianism at the centre can we arrive at the restoration of a humane rule of law. In the past two and a half years, since the corona crisis, a huge number of people have already woken up to how we are in danger of losing our freedom and humanity more and more. So I think a foundation has certainly been laid that can grow further. Whether that will be enough to avoid disaster at this point, I dare not make a prediction on that. It's about finding new sources while continuing to know and respect old sources of humanity and justice."
Doesn't he find that a bit floaty and passive? Jonker: "No. It is a misunderstanding to think that consciousness would mean that you are no longer willing to fight for something. Look at Ukraine. There, a collective consciousness has grown at lightning speed about humane and national values that people want to protect and defend. Even by force of arms if necessary. Of course, I hope it will never be necessary here in the Netherlands. But I cannot rule that out either. You see that our current government is not particularly interested in reasonable arguments. But when farmers block highways with tractors, our government's interest in dialogue suddenly increases. We have seen something similar with the Yellow Vests in France. Why is the French government willing to effectively protect all French citizens from extremely high energy prices, while the Dutch government, until recently, indirectly showed it wanted to throw entire populations in front of the bus? It has everything to do with those Yellow Vests. Who knows, maybe one day yellow, green or purple vests will be needed to defend or regain our privacy."