Legal procedure against Dutch Data Retention Act

The State infringes upon our fundamental right to privacy by retaining everyone’s communication data without any grounds. This is what the European Court of Justice stated, when it declared the European Data Retention Act (2006/24/EG) to be invalid with retrospective effect on the 8th of April, 2014.

In the Netherlands, rules derived from the Data Retention Act are enshrined in the Retention Act for Telecommunication (Wet bewaarplicht telecommunicatie). The Council of State advised the government in July 2014 that the Act was in direct violation of fundamental rights. The Dutch government has however set aside this advice and refuses to render the Act inoperative. The government is currently working on a new law, but wants to keep the Retention Act for Telecommunication operative until the new Act would be in place.

PILP is part of a broad coalition of partners that want to compel suspension of the Act, effective immediately. Part of this coalition are, amongst others, the Dutch Association of Journalists, the Dutch Association of Criminal Defense Lawyers, Privacy First and some companies that encounter the effects of this Act directly are a part of this coalition. Lawyers Fulco Blokhuis and Otto Volgenant of Boekx Advocaten have, also on behalf of PILP, sent a letter to the government on the 8th of December 2014 with the request to consult on immediate abolishment of the Act.

If the government does not reply to this, a summary judgment will be sought. PILP is then a co-plaintiff in this case.

PILP has joined the coalition, because the right to privacy is a fundamental right which has come under great pressure through various developments in the past couple of years. The restriction of rights and freedoms is also difficult to undo. The government has the primary responsibility to safeguard these rights and should give serious consideration to the advice given by the Council of State and European Human Rights institutions such as the European Court of Justice. This Court has unambiguously stated that there are fundamental problems in the European Act which forms the basis of the Dutch Act. At this moment, the government should have suspended the Act, or at least suspended its enforcement. For further information about our argumentation, we would like to refer you to the website of Privacy First.

The PILP-team submits grounds that are in line with the ECHR for this case. We also help deciding upon the strategy of the procedure.

Updates:

  • The Data Retention Coalition has made use of internet consultation [Dutch] in this case.
  • You can find the official subpoena here [Dutch].
  • The summary judgment will take place on February 18, 2015 at 11:00 at the The Hague District Court.
  • The Netherlands Committee of Jurists for Human Rights has posted an article about the retention act on Liberties.eu.
  • You can find the pleading notes of the summary judgment on the website of Privacy First. The verdict of the judge will be on Wednesday, March 11th, 2015.
  • On March 11, 2015 the district court of The Hague had rendered the Dutch Data Retention Act inoperative, click here for the verdict (Dutch).

 

 

Letter to Facebook Inc. regarding the violation of EU Privacylaw

Together with Privacy First Foundation, Bits of Freedom, the Dutch Platform for the Protection of Civil Rights and two EU-citizens, PILP wrote a letter to Facebook asking the company to stop the transfer of personal data to the US authorities. One of the incentives for this letter was the decision of the European Court of Justice made in the case Schrems v. Data Protection Commissioner. The Court ruled that the Safe Harbour-principles were not in accordance with EU Law. Unfortunately, Facebook seems to have failed to act as such too by relying on those principles.

These principles entail that whenever US companies have personal data of EU-citizens in their possession, they are bound to ascertain an ‘adequate level of protection’. Therefore US companies must provide measures that are sufficiently effective to offer privacy protection. Moreover, these measures must in general terms resemble the protection offered by Member States within the European Union. Article 8(2) of the EU Charter of Fundamental Rights (2000/C 364/01) plays a particularly important role that promulgates that the processing of personal data shall occur ‘fairly for specified purposes and on the basis of consent of the person concerned’. The Court stated that the access to personal data of EU-citizens by the US authorities on a general basis constitute an infringement of the fundamental right to respect of privacy. In conclusion, the Safe Harbour Decision, on which the company relied, did not comply with the principles of the European Directive 95/46/EC and the Charter. It was also solely applicable to the US companies that have given their consent thereto. The US authorities could not be subjected to the principles.

In our letter we have asked Facebook and her subsidiaries (WhatsApp and Instagram) to terminate the data-transfer before January 15th 2016. After that, we are considering to undertake domestic judicial measures against the company. The lawyers involved in this issue are from Boekx.
This letter has received some Dutch media-attention.

Update:

  • Facebook has replied to our letter! Read their response here.
  • Another letter to Facebook has been sent after the company failed to officially reply to our former letter. The press release of lawfirm Boekx can be read here.

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