Profiling and SyRI

Picture ‘Shepard Fairey in London: Big Brother Is Watching YOU‘ by Tim Rich and Lesley Katon, CC BY-NC-ND 2.0.

System Risk Indication (SyRI)

‘If the information collected by the police, the tax authorities, the social security offices, the health care system and other bodies were to be brought together in one file, the freedom of the individual would be seriously compromised. The file with private information is the emblem of the totalitarian state.’- Baron Browne-Wilkinson, former vice-president of the English Supreme Court, 1991

SyRI is a risk profiling system, used by the Dutch government, that linked and analysed large amounts of personal data of citizens, such as  data on identity, labour, movable and immovable property, education, pension, business, income and assets, pension and debts. SyRI, an instrument based on Section 64 and Section 65 of the Dutch SUWI Act, was used to prevent and combat abuse of social security provisions, tax and contribution fraud and non-compliance with labour laws.

The profiling of citizens by SyRI led to risk reports: so-called “surprise addresses” with an increased risk of fraud. These people were registered,  after which they could be subject to criminal and administrative investigations and sanctions. Every inhabitant of the Netherlands was ‘suspected in advance’ by the government’s use of SyRI.

The case against SyRI

In 2014, a coalition of civil society organizations and authors Tommy Wieringa and Maxim Februari, under the coordination of PILP-NJCM, initiated strategic litigation on SyRI against the Dutch State. With this lawsuit they aimed to stop SyRI. The manner in which the government used SyRI against its citizens and thus processed large amounts of data was unprecedented, undemocratic and subject to serious human rights objections. The Dutch Council of State and the Dutch Data Protection Authority therefore had advised negatively on the SUWI Act, in particular with regards to the large amounts of personal data that could be processed and the large invasion of privacy by SyRI. According to the coalition, SyRI damaged citizens’ confidence in the government, and its working method had an inhibiting effect on citizens’ willingness to communicate openly with the government. As a result, SyRI posed a fundamental threat to the functioning of a democracy under the rule of law. According to the coalition, it was not possible to improve the system by incorporating extra safeguards or using better algorithms.

On 5 February 2020, the District Court of The Hague ruled on SyRI; SyRI was in violation of the European Convention on Human Rights. The ruling received much attention, both nationally and internationally, and was received as a ‘landslide victory’ for the protection of the private lives of citizens.

According to the Court, SyRI constituted a disproportionate invasion of the private lives of citizens. This did not only apply to people who were identified by SyRI as being at increased risk, but to everyone whose data was analysed by SyRI. According to the District Court, SyRI was not transparent and therefore not verifiable. The invasion of privacy was unforeseeable for citizens and they could not defend themselves against it. The Court also mentioned the actual risk of discrimination and stigmatization of citizens, based on socio-economic status and possible migration background, in so-called ‘problematic neighbourhoods’, where SyRI has already been deployed. According to the Court, the deployment of SyRI is accompanied by a risk of prejudice, but this risk cannot be controlled. Based on these considerations, the District Court declared SyRI to be non-binding, which means that SyRI can no longer be used by the government.

Shortly after the judgment, the State Secretary of Social Affairs and Employment announced that the system will no longer be used. The State Secretary also announced that the State will not appeal the judgment. According to the State Secretary, SyRI was inadequately efficient nor effective in the fight against fraud, and did not provide added value for the parties working with it.

As a result of strategic litigation a definite end has been put to SyRI.

Strategic litigation

The lawsuit against the Dutch State was initiated by a coalition of civil society organisations, consisting of the Platform for the Protection of Civil Rights (Platform Bescherming Burgerrechten), the Dutch Section of the International Commission of Jurists (NJCM), trade union FNV, Privacy First, Foundation KDVP, the National Client Council and authors Tommy Wieringa and Maxim Februari. PILP-NJCM coordinated the court case. The case was handled by lawyers Anton Ekker of Ekker Advocatuur and Douwe Linders of SOLV.

 

Some of the plaintiffs with the lawyers

 

The aim of the case was twofold: to stop SyRI, and to stimulate public debate on systems such as SyRI and on the risk profiling of innocent citizens. Therefore, linked to the strategic lawsuit, a campaign was launched by the Platform for the Protection of Civil Rights and Fundamental Freedoms, through which the second objective was also successfully achieved.

Although the adoption of the law that made SyRI possible in 2014 did not stir much debate, the discussion about the legitimacy of the system swelled after the announcement of the court case. The deployment of SyRI in two neighborhoods in the Dutch city of Rotterdam led to protests among residents and discussions in the city council early 2019. Shortly after, Rotterdam Mayor Aboutaleb pulled the plug on the investigation; the municipality and the ministry did not agree on the legal basis of the project. In June 2019, the newspaper de Volkskrant revealed that SyRI had not detected a single fraudster since its introduction. In October 2019, Philip Alston, UN Special Rapporteur for extreme poverty and human rights wrote in a critical amicus curiae (a letter as ‘friend of the court’) to the District Court that he had serious doubts about the legitimacy of SyRI. According to Alston, the court case against SyRI is of international importance for the use of digital technologies in a welfare state and its impact on the rights of the most vulnerable citizens. The involvement of the UN Special Rapporteur gained much media attention, for example in the Dutch current affairs television program Nieuwsuur. In November 2019 SyRI won the Expert Award of the Big Brother Awards.

Interested in reading more?

Merel Hendrickx of PILP-NJCM and Tijmen Wisman of Platform Bescherming Burgerrechten jointly wrote a blog for the website of the Digital Freedom Fund. The Digital Freedom Fund supported the SyRI procedure and wrote a case note on the subject.

The Correspondent published a nice article about setting up this strategic procedure behind the scenes and an article about the case and the digital welfare state.

The New York Times paid attention to SyRI in a report on the use of algorithms by governments in Europe and the United States.

On the day of the verdict, the news exploded. There was almost no national medium that did not report on the verdict and it also gained much international media attention. A selection: Guardian, Privacy International, NOSVolkskrant, NRC, Trouw and Telegraaf.

Maxim Februari and Tommy Wieringa joined the Beau talk show and had a good discussion about SyRI, privacy and the importance of human rights.

The day before the court hearing, Dutch newspaper NRC published two pages on SyRI: ‘Do we want the State to treat its citizens that way?’ (‘Willen we dat de Staat zo met haar burgers omgaat?’) and ‘There was an atmosphere of hard, harder, hardest’ (‘Er heerste een sfeer van hard harder hardst’). NRC published about the hearing as well, just like, among others, Trouw, RTL News and FD.

Writer Tommy Wieringa warned against SyRI in his Kousbroek lecture: ‘The System Risk Indication uses anti-grassroots software. Its control is permanent. The government and the terrorist have their image of man in common: there are no innocents.’ (‘Het Systeem Risico Indicatie bedient zich van volksvijandige software. Zijn controle is permanent. De overheid en de terrorist hebben hun mensbeeld gemeen: er zijn geen onschuldigen.’ ) Wieringa also wrote a column on SyRI in 2019.

Newspaper Volkskrant wrote in 2014: ‘Burger will soon be screened as the profile of a criminal is drawn up’ ( ‘Burger wordt straks doorgelicht zoals het profiel van een crimineel wordt opgesteld’)

 

 

 

 

Updates

On April 23, 2020, the State announced that it would not appeal the judgment. This means that SyRI is now stopped for good.

On February 5, 2020, the court of the Hague pronounced its judgement: SyRI is in violation of the EHRM. The State immediately put the judgment into effect by stopping SyRI.

On October 29, 2020, the hearing in the SyRI case took place.

The Special Rapporteur on extreme poverty and human rights, Philip Alston, wrote an amicus curiae, in which he explains his concern about SyRI.

On July 3, 2019, the only running SyRI-project, in Rotterdam, was cancelled, due to, amongst others, privacy concerns with regards to the General Data Protection Regulation.

The Netherlands Trade Union Confederation (FNV) has officially joined the legal coalition in the court case against the System Risk Indication (SyRI). The district court in The Hague decided that the trade union confederation has sufficient interest to join the coalition. Read the full news article here.

The Netherlands Trade Union Confederation (FNVannounced on July 17, 2018, that it will be joining the court case that the PILP, together with a coalition of civil society organizations, initiated against risk profiling through SyRI.

On March 27, 2018, a coalition of NGO’s (NCJM,  Privacy First, KDVP, Platform Bescherming Burgerrechten and the Landelijke Cliëntenraad) and two Dutch writers (Tommy Wieringa and Maxim Februari) have started a court case against SyRI. This is a PILP-NJCM case, the case lawyers are Anton Ekker and Douwe Linders from firm Deikwijs. Read the summons (in English) here.

Honours students of the University of Utrecht presented their research to the PILP in May 2016. The students examined whether the Dutch rules on the anti-fraud data-processing system comply with data protection principles protected by EU law, and compared the Dutch system with practice in the United Kingdom, Germany and the US.

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