Brief against Sleep Act
Cabinet and parliament push for rapid entry into force of privacy-violating Sleep Act. Privacy coalition starts summary proceedings to prevent it.
Unchanged enactment of Sleep Act threatens
A thorough public debate on the new Intelligence and Security Services Act, known as the Sleep Act, has taken place in recent months. In the referendum on 21 March last, a majority of the Dutch population subsequently voted AGAINST this law pronounced. In response, the cabinet has only promised some summary, superficial policy changes and some non-fundamental legislative amendments. Both the Cabinet and the House of Representatives have continued to push for the rapid entry into force of the current Sleep Act - in its unaltered form - by May 1. The intended legislative amendments will not be tabled by the cabinet until after the summer. A parliamentary motion to delay the entry into force of the Sleep Act until these legislative amendments have been dealt with was unfortunately rejected by the House of Representatives yesterday. With this, parliament seems to have run out of steam for the time being and it is now society's turn again.
Standing policy of Privacy First is to prevent massive privacy violations. The enactment of the current Sleep Act unmistakably constitutes a massive privacy violation: it will result in the large-scale interception of innocent citizens' internet traffic and, moreover, un-evaluated data of innocent citizens will be shared with foreign secret services. This constitutes a flagrant violation of the right to privacy. Therefore, possible legislative changes to 'fix' this afterwards cannot be waited for; after all, the privacy violations will have already happened. Today, a coalition of Privacy First and several other civil society organisations and companies is therefore urgently requesting the government to postpone the introduction of (the most privacy-infringing parts of) the Privacy Act until all legislative amendments have been dealt with in parliament. If the cabinet refuses this request, our coalition will be forced to file summary proceedings to force a postponement of the entry into force of the Sleep Act.
Besides Privacy First, the coalition for this summary proceedings consists of the Dutch Legal Committee for Human Rights (NJCM), Bits of Freedom, Dutch Association of Criminal Lawyers (NVSA), Platform Bescherming Burgerrechten, Free Press Unlimited, BIT, Voys, Speakup, Greenpeace International, Waag Society and Mijndomein Hosting. The case will be handled by Boekx Advocaten and coordinated by the NJCM's Public Interest Litigation Project (PILP). In addition to these summary proceedings, Privacy First et al. since March 2017 also prepared a broader lawsuit (involving more organisations) to have the Sleep Act declared unlawful in several respects for violating international and European privacy law.
Today, on behalf of the coalition, our lawyers are sending a letter to the cabinet (ministers of the interior and defence) requesting a postponement of the entry into force of the Sleep Act. The cabinet has until Friday next to respond.
Update 20 April 2018: the cabinet rejected the coalition's request. The coalition is now continuing preparations for summary proceedings.
Update 14 May 2018: The public hearing in the summary proceedings will take place at the District Court of The Hague on Thursday 7 June at 10am-12pm, the court ruled today.
Case number: C/09/553023 KG ZA 18-476. Click HERE for directions.
Update 17 May 2018: Today the coalition subpoena was served on the country's lawyer; click HERE for the full version (pdf).
Update 7 June 2018: this morning the court hearing took place at the court in The Hague; click HERE for our lawyers' pleading note (pdf). The judge's ruling is scheduled for Tuesday, June 26.
Update 26 June 2018: today, the court in The Hague unfortunately dismissed the case, click HERE for the full ruling. Privacy First finds it a very disappointing judgment. Admittedly, the legal bar in this case was high: in order to win these summary proceedings, the judge had to declare the Sleep Act "unmistakably non-binding" due to obvious (unmistakable) conflict with international or European law. However, the judge's ruling reads mainly as a purposeful reasoning in favour of the State, with various objections from our coalition left unnamed in the ruling. It should also be emphasised (as the court himself) that this judgment represents only a preliminary judgment and that there was no thorough, "full" review in this case.
The coalition of organisations that filed the summary proceedings regrets the verdict. The coalition believes that, also in view of the referendum result, the government should have waited to introduce the challenged parts of the Sleep Act until the parliamentary legislative process following the referendum was completed. Therefore, unchanged introduction of the Sleep Act as of 1 May this year and only later (after the summer) submitting a legislative amendment is and remains incorrect.
The coalition will discuss possible legal follow-up steps in the near future.