NRC Next, Nov 27, 2013: 'Your daily doings are none of the government's business'

“The company SMS Parking does not have to give customers' parking data to the tax authorities. The court ruled that yesterday. The government does not need to know from everyone who parks where.

Tax authorities' right to request privacy-sensitive information about citizens is less than thought. The court in Den Bosch ruled yesterday that the company SMS Parking does not have to transfer customers' parking data. Providing the government with information about which motorist parked where and when exactly is too great an invasion of privacy.

'In principle, every citizen should be able to park a car at a location of their choice in the Netherlands, without the government needing to know that they are doing so and why they are doing so,' said the judgment in summary proceedings brought by the Tax Authority against SMS Parking. It is the first time the Tax Authority has been knocked back in its mass collection of motorists' location data.

SMS Parking services allow motorists to pay for a parking space using their mobile phone. Using the 2012 parking data, the tax authorities wanted to check whether leased car drivers did not drive more private kilometres than they declared via their trip records. SMS Parking refused to hand over the data to protect customer privacy. Director Mladen Ciric previously said he feared that the information would end up on the street due to data leaks to the tax authorities. The company's lawyer argued that the data retrieval of all parking transactions was disproportionate, as lease drivers make up only a limited part of the customer base.

Competitors did cooperate

Earlier, competitors such as Parkmobile and Yellowbrick did comply with the claim by the tax authorities. Based on the information they provided, additional charges have already been imposed on lease drivers. That may well have been premature. That the companies cooperated is not surprising, as the powers of the tax authorities to request information seemed almost unlimited until now. Yesterday, for instance, the judge referred to a 1974 Supreme Court ruling. (...) Even after that, the Supreme Court several times let the tax authorities' interest in detecting tax evasion outweigh citizens' right to privacy. That right is enshrined in Article 8 of the European Convention on Human Rights (ECHR).

The judge in Den Bosch ruled otherwise yesterday. A major reason for this is that nowadays the government has access to all kinds of databases with data from which citizens' behaviour can be deduced. Think, for example, of information about who called whom when and from what location. This data is kept for a year and police and investigative agencies have access to it. "Where more and more information is recorded, the question increasingly arises in the public debate as to what the main rule of Article 8 ECHR is still worth to citizens," the judge said.

According to the court, the oft-repeated "whoever has nothing to hide has nothing to fear" should not be the starting point for government data retrieval. "The daily doings of citizens are none of the government's business." That, according to the ruling, is the correct translation of the ECHR.

Dragnet method

An exception to this can only be made because of "very weighty collective interests". Tax compliance may be such an interest, but the ,,fishing expedition regarding everyday behaviour of citizens to see whether that dragnet method produces 'hits'" goes too far, according to the court.

Commenting on the verdict, a spokesman for the Inland Revenue said yesterday that the tax authorities will appeal. (...)

Police license plate photos

In addition, the Inland Revenue receives a weekly data file from the police with details of whose car drove where on the highway. That kind of information is captured by police cameras recording license plates. Also with this, the tax authorities mainly check whether lease drivers do not drive too many private kilometres. According to the Dutch Data Protection Authority, storing the photos taken by the cameras is illegal. Several lawsuits are pending from motorists who feel their privacy is too much affected in this way. A ruling by a higher court on data collection by the Inland Revenue may also affect their lawsuits. And for the additional charges imposed on them.

The Lower House is now considering a bill by Minister Opstelten (Security and Justice, VVD) that does allow the retention of licence plate photos, for a period of four weeks. This would allow police to search back through the licence plate photos to see if a suspect was in the area with his car during a crime. Privacy advocates say the retention of licence plate photos also violates European privacy rules. Organisation Privacy First says it will go to court if the House and Senate approve the plans."

Source: NRC Next 27 November 2013, 'Knowing' section.