New mega case threatens against ANPR bill

On Wednesday night, 2 November next, the House of Representatives will debate a controversial bill that will put every motorist's travel movements into a police database for 4 weeks. If both Houses pass this bill, Privacy First will have this overturned by the courts.

Massive privacy violation

Privacy First's established policy is to challenge massive privacy violations in court and have them declared unlawful. Privacy First already successfully did so in recent years in the case of the central storage of everyone's fingerprints under the Passport Act and the storage of everyone's communications data under the Telecommunications Data Retention Act. A current, similar bill that lends itself ideally to such a mega case is the current bill 33542 From minister Van der Steur on Automatic number plate recognition (automatic number plate recognition, ANPR). Under this bill, the license plates of all cars in the Netherlands (or everyone's travel movements) will be stored in police databases through camera surveillance for four weeks for investigation and prosecution. Every motorist thereby becomes a potential suspect. This is totally unnecessary, totally disproportionate and also ineffective. The bill therefore violates the right to privacy and is therefore unlawful.

Old bill

The current ANPR bill was already submitted to the House of Representatives in February 2013 by former minister Opstelten. Previously, Justice Minister Hirsch Ballin also planned to submit a similar proposal with a 10-day retention period back in 2010. However, the House of Representatives subsequently declared this proposal controversial. However, ministers Opstelten and Van der Steur then added three shovels to it with their current bill. Due to privacy concerns, the parliamentary discussion of this bill then lay dormant for several years, but now seems to be reactivated and even strengthened by a sixfold increase in the proposed retention period by VVD and PvdA.

Data haystack

Under current rules, ANPR data of innocent citizens must be deleted within 24 hours; in the optics of the Personal Data Authority, all license plates that are not suspicious (so-called "no-hits") should even be immediately removed from the databases. Minister Van der Steur thus goes in direct opposition to this by also wanting to store the license plates of non-suspicious citizens for four weeks. VVD and PvdA even want this storage period increase to 6 months. Such a data haystack constitutes a priori a flagrant violation of every motorist's right to privacy. Any judicial oversight of its use does not alter this.

UN Human Rights Council

In recent years, Privacy First has already made this position clear several times to both the House of Representatives (Standing Committee on Security and Justice) as a whole and to relevant MPs personally. Privacy First has also done so in personal meetings with Minister Opstelten (July 2013) and Minister Van der Steur (July 2014, then still VVD MP). Also, Privacy First recently raised the issue with the United Nations Human Rights Council. In May 2017, the Dutch government will have to answer to this in Geneva.

Lawsuit

If the House of Representatives and Senate will pass the current ANPR bill, Privacy First (in broad coalition with other civil society organisations) will immediately sue the Dutch State and have the law set aside for violating the right to privacy. If necessary, Privacy First and co-plaintiffs will take this to the European Court of Human Rights in Strasbourg. Given the European and Dutch case law on the matter, Privacy First considers the chances of a successful legal action to be extremely high.

Update 1 November 2016: the Labour Party now seems to have withdrawn its earlier support for extending the retention period to 6 months, as evidenced by the fact that the current amendment tabled only by VVD.

Update 2 November 2016: This morning, Privacy First was live on air on Radio 1; click HERE for the entire interview.

Update 3 November 2016: Last night the debate on the bill took place in the House of Representatives, click HERE to watch the entire debate and HERE for the report. VVD, PvdA, CDA and PVV seem set to vote in favour of the bill. GroenLinks, D66 and SP are opposed. "With D66, GroenLinks fears that Article 8 of the European Convention on Human Rights is under threat. It appears that Privacy First may yet have a very strong case on its hands in court, comparable to the annulment of the Data Retention Directive and the Telecommunications Data Retention Act.", said MP Liesbeth van Tongeren (GroenLinks) during the debate with minister Van der Steur. The vote on the bill will take place on Tuesday 8 November next. After that, it will be the Senate's turn.

Update 8 November 2016: today, the Lower House passed the bill with a 4-week retention period. VVD, PvdA, CDA, PVV, 50Plus and SGP voted in favour. D66, SP, GroenLinks, Partij voor de Dieren and ChristenUnie voted against. The VVD's proposal to extend the retention period to six months was rejected. Also read the analysis by PrivacyBarometer. Next stop: Upper House, hopefully also the end station. If not, a stunning court case will follow.