On Tuesday, 29 October 2019, at 9.30 am at the court in The Hague the hearing in our case against the Dutch Government regarding the System Risk Indication (SyRI) will take place. SyRI is used in certain neighbourhoods and districts to look for patterns of a risk to possible fraudulent behaviour. This is done by creating risk profiles of citizens through secret ‘black box’ algorithms. According to the plaintiffs, a broad coalition of civil society organisations (Stichting Platform Bescherming Burgerrechten, Dutch Section of the International Commission of Jurists (NJCM), Union FNV, Stichting Privacy First, Stichting KDVP and the Landelijke Cliëntenraad) and authors Tommy Wieringa and Maxim Februari, the system constitutes a threat to the rule of law. The aim of the proceedings is having SyRI declared unlawful by the court.
SyRI is used to create risk alerts by processing and linking personal data of citizens. Names are collected in a register of risk reports. The government can start investigations into these citizens flagged as risk reports, and impose administrative or criminal law sanctions. All citizens of the Netherlands are, according to SyRI, suspects.
The system cannot be fixed by adding safeguards and using better algorithms. The way in which the government uses SyRI to deploy massive amounts of data against her own citizens is unprecedented, undemocratic and seriously problematic in the context of human rights. It also damages the trust of citizens in governmental organs and has a chilling effect on free and open communication between citizens and their government. As a result, SyRI is a fundamental threat to the functioning of the rule of law in the Netherlands.
Contrary to fundamental rights
The application of SyRI is in contravention of national (privacy) law, the Constitution of the Netherlands and international human rights and privacy law, such as the ECHR, GDPR and the EU Charter of Fundamental Rights. It is up to the Dutch Government to prove why this large-scale invasion of privacy is necessary for and proportionate to the aims of SyRI. However, it has failed to do so.
UN concerned about SyRI
The Special Rapporteur on extreme poverty and human rights, Philip Alston, wrote an amicus curiae, in which he explains his concern about SyRI. According to the Special Rapporteur, the proceedings against SyRI are of international interest, especially with regard to the use of technology and algorithms in welfare states and the consequences thereof for the rights of vulnerable citizens.
SyRI affects the rights of all citizens. At the same time, SyRI is, at the moment, only applied in the poorest neighbourhoods, where most people are not white. Therefore, the application of SyRI also seems to be in violation of the prohibition of discrimination.
Profiling and linking personal data of citizens
The plaintiffs are not against the government combating fraud by the government. However, this coalition believes that combating fraud needs to take place on the basis of concrete, individual and substantiated suspicion and not the mere risk, based on an algorithm, that a person might commit fraud. SyRI is thereby a disproportional measure that does more harm than good. Alternative ways of combating fraud exist and their application would be less infringing on the right to privacy.
Since the announcement of its introduction, there have been five research reports on SyRI. Ten thousands of citizens have been ‘checked’ by the system. To date, not even one person who has committed fraud has been detected by using SyRI.
The plaintiffs are represented by A. Ekker (lawyer at Ekker Advocatuur) and D. Linders (lawyer at SOLV Advocaten). The proceedings are coordinated by the Public Interest Litigation Project (PILP-NJCM).
For more information, you can visit our webpage about profiling and SyRI here.