Interim Injunction Proceedings Against Dutch Data Retention Act

A broad coalition of organizations and companies has started interim injunction proceedings against the Dutch government, demanding the abolition of the Dutch Telecommunications Data Retention Act.

A broad coalition of organizations and companies has started interim injunction proceedings against the Dutch government. The Privacy First Foundation, the Netherlands Committee of Jurists for Human Rights (NJCM), Internet provider BIT, the Dutch Association of Journalists and the Dutch Association of Defence Counsel, among others, are demanding the abolition of the Dutch Telecommunications Data Retention Act. The Dutch Council of State and the European Court of Justice have already ruled that the act is in violation of fundamental rights that protect private life, communications and personal data. However, the Dutch government refuses to render the Telecommunications Data Retention Act inoperative.

Dutch government refuses to repeal the act

On April 8, 2014, the European Court of Justice declared the European Data Retention Directive (2006/24/EC) invalid with retroactive effect. According to the court, retaining communications data of everyone without any concrete suspicion is in violation of the fundamental right to privacy. Objective criteria should be applied to determine the necessity of collection and retention of data and there should be prior control from an independent body or judge. Randomly and unrestrictedly collecting metadata (traffic data) in the context of "mass surveillance" is not permitted, according to the court.

In the Netherlands, regulations in this area are enshrined in the Dutch Telecommunications Data Retention Act, which largely mirrors the European Data Retention Directive. The act provides that telecommunications companies and internet providers have to retain various data regarding Internet and telephone usage for at least six and at most twelve months in order for judicial authorities to be able to use those data for criminal investigation purposes. The Dutch Council of State recently judged that the act does not comply with fundamental rights that protect private life, communications and personal data. However, the Dutch government does not heed the advice of the Council of State and refuses to repeal the act. Compliance with the act will be maintained by the government.

Massive violation of citizens' privacy rights


NJCM has joined the coalition because the right to privacy is a fundamental right that has been put under a great deal of pressure by various developments in recent years, and because of the fact that once rights and freedoms are restricted, they cannot easily be restored. 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. By now, the government should have suspended the act, or at least have suspended its enforcement.

Vincent Böhre of Privacy First: "Mass surveillance constitutes a massive violation of citizens' privacy rights. It is unacceptable that the Dutch government clings to this practice after the highest European judge had already clearly stated back in April 2014 that this privacy violation is not permitted."

Thomas Bruning, secretary of the Dutch Association of Journalists: "Telecommunications companies and internet providers are now obliged to retain a vast amount of communications data of all citizens. This includes journalists. Companies have to disclose these data at the request of the government. There is no guarantee whatsoever for the journalistic right of non-disclosure."

Alex Bik of Internet provider BIT: "When the Dutch government introduced the act, it hid behind the argument that the introduction was simply imposed by Europe, but since the European Data Retention Directive has been repealed with retroactive effect, this argument all of a sudden is no longer deemed valid. That is not right."

The interim injunction proceedings against the Dutch government pertaining to the retention of telecommunications data will take place before the district court of The Hague in a public hearing at 11:00 CET on Wednesday, February 18, 2015.