Privacy First calls on Senate to reject ANPR bill

Tomorrow, the Senate will debate a controversial bill that will put every motorist's travel movements into a police database for 4 weeks. Today, Privacy First called on the Senate to reject this bill. Below is the full text of our letter (PDF):

Honourable MPs,

Tomorrow, you will debate the Automatic Number Plate Registration (ANPR) bill with the Minister of Justice. Already since 2011, Privacy First has made its critical position on this bill known numerous times, both in the media and towards the House of Representatives and the Senate, as well as to the minister personally. On 20 June last, a critical hearing on the bill took place in your House of Representatives.[1] The tenor of this hearing was that this bill does not meet the legal requirements of necessity and proportionality. Moreover, the effectiveness of ANPR has not been demonstrated to date.[2] For these reasons, the bill has no place in a democratic rule of law and should therefore be rejected.

Bill is legally untenable

The bill does not meet the requirements that the European Court of Justice has placed on this type of legislation in recent years in cases Digital Rights and Tele2.[3] Indeed, this bill involves general, indiscriminate data storage and does not limit such storage to what is strictly necessary. Moreover, it lacks prior judicial review when accessing the data. Privacy First therefore expects the judiciary, if asked, to declare the bill non-binding due to violation of European privacy law.

ANPR dragnet

At its core, the current bill amounts to mass storage of everyone's travel movements on public roads. Societal resistance to such mass surveillance is strong and ever-increasing, as witnessed by the popular uprising against the central storage of everyone's fingerprints under the Passport Act in 2009-2011, the judicial disapplication of the telecoms retention obligation in 2015 and the upcoming referendum (and planned large-scale court case) against the new Intelligence and Security Services Act (Wiv), also known as the 'Sleep Act'. The current ANPR bill constitutes a similar dragnet: not of everyone's fingerprints, telecommunications or internet behaviour, but of everyone's travel movements. Should your chamber nevertheless approve this bill, Privacy First will be left with no other option than to have it overturned by the courts.

International criticism

Privacy First is not alone in this: several organisations have already pledged to join our lawsuit against the ANPR dragnet. Criticism of ANPR is also growing abroad: ANPR recently won a national Big Brother Award in Belgium.[4] In addition, the Netherlands received the following urgent advice from the UN Human Rights Council in Geneva in May this year: "Take necessary measures to ensure that the collection and maintenance of data for criminal purposes does not entail massive surveillance of innocent persons."[5] The Dutch government explicitly accepted this opinion last September.[6] In doing so, the Netherlands has taken a stand against mass surveillance at an international level. The current ANPR bill contradicts this and should therefore be rejected.

Regulating current practice

Current ANPR practice takes place on the basis of Article 3 Police Act. However, this old, broad catch-all article was never intended for that purpose and does not meet the modern requirements of Article 8 ECHR (right to privacy). The current ANPR practice is therefore unlawful. The Dutch parliament would do better to legislate that current practice and provide it with strict privacy safeguards: mere storage of license platehits and only temporary storage of no-hits in concrete, exceptional cases, following judicial authorisation. However, the current bill misses the point by miles: it makes every motorist a potential suspect and lands in a central police database for 4 weeks. Moreover, under the new Wiv, this database will be directly accessible to the AIVD and MIVD, and ANPR data will also be exchanged with foreign services. Mass surveillance will thus become a reality. This will turn the Netherlands into a Big Brother society. This constitutes a historical break with the past. It is up to your Parliament to prevent this and to push for better, privacy-friendly legislation that will allow the Netherlands to remain free and safe.

For further information or questions regarding the above, Privacy First can be reached at any time on telephone number 020-8100279 or by email: info@privacyfirst.nl.

Sincerely,

Privacy First Foundation

[1] See https://www.privacyfirst.nl/aandachtsvelden/wetgeving/item/1075-hoorzitting-eerste-kamer-over-wetsvoorstel-anpr.html.

[2] See, for example, most recently WODC, ANPR: applications and developments (December 2016), https://www.wodc.nl/onderzoeksdatabase/2387-intelligente-toepassingen-van-automatic-number-plate-recognition.aspx.

[3] See Court of Justice of the European Union, joined cases C-293/12 & C-594/12 (Digital Rights, 8 April 2014) and joined cases C-203/15 & C-698/15 (Tele2, 21 December 2016).

[4] See https://bigbrotherawards.be/nl/.

[5] See https://www.privacyfirst.nl/aandachtsvelden/wetgeving/item/1071-nederland-onder-de-loep-bij-verenigde-naties.html. In this context, see also the recent letter from the UN High Commissioner for Human Rights to the Dutch government, reiterating this advice and urging implementation and reporting: https://www.upr-info.org/sites/default/files/document/session_27_-_may_2017/letter_for_implementation_3rd_upr_nld_e.pdf (23 October 2017).

[6] See UN Doc. A/HRC/36/15/Add.1 (14 September 2017), available at https://www.upr-info.org/sites/default/files/document/netherlands/session_27_-_may_2017/a_hrc_36_15_add.1_e.pdf.

Update 21 November 2017: This afternoon, the Senate passed the ANPR bill adopted. SGP, Christian Union, VVD, PvdA, CDA, 50Plus, OSF & PVV voted in favour. D66, GroenLinks, SP & PvdD voted against. Privacy First et al will now file a lawsuit to have this law declared unlawful due to violation of European privacy law. Further coverage will follow very soon.