Unprecedented appearance by European Commissioner for Home Affairs, innovating on quicksand, and the cabinet vs. online confidentiality

Commissioner Johansson addresses the audience at annual Dutch Big Brother Awards

On 13 February 2023, European Commissioner for Home Affairs Ylva Johansson was a guest at Bits of Freedom’s annual Big Brother Awards. Although it was her birthday, the reason for her attendance wasn’t very festive: the Big Brother Awards goes to the year’s biggest privacy violators, and the commissioner was the recipient of the 2022 public choice award. Her proposal for combating child sexual abuse was what landed her the prize.

After traveling to Silicon Valley and speaking to Big Tech in the early stages of the proposal, we were relieved the commissioner was finally willing to enter into dialogue with civil society. We believe it’s important that policy makers talk to those directly affected by their legislative proposals. That’s why, ever since we heard the proposal was on its way, we’ve done our best to mobilise not only digital rights expertise, but also that of organisations specialised in the rights and protection of children.

Until now, the commissioner was disinclined to listen. But if you do not talk to all stakeholders, the legislation you develop will not meet the needs of the very groups of people you want to help. That has become painfully visible by the disparity between the recommendations of experts engaged in combating sexual violence and the commissioner’s proposal.

The Dutch Minister of the Interior received the 2022 jury award and the Director of Transparency International Netherlands, Lousewies van der Laan, accepted the positive Big Brother Award on behalf of a whistleblower who,had helped call attention to grave shortcomings in municipalities’ compliance with privacy law last year.

Minister for Digitalisation successfully pushes for investigation into government compliance with privacy law

When the new (and first!) Dutch Minister of Digitalisation, Alexandra van Huffelen, entered into office, she extensively consulted civil society on her draft working agenda. A key feedback we gave was that, although the government has lofty ambitions when it comes to the use of technology and data, they haven’t been able to guarantee a sound basis on which to build. This has resulted in”innovation” and “experimentation” grounded in discriminatory processes and non-compliance with the law.This is leaving citizens vulnerable to abuses of power and arbitrary treatment and leading to an erosion of the rule of law.

We were therefore pleased to see that the minister planned to prioritise an investigation into the government’s compliance with privacy law, and even happier when the results arrived expediently. We support the researchers’ findings and calls to action, most notably the need for the government to invest in legal protection and internal supervision.

We will also continue to call for an investigation into the extent of non-compliance with privacy law by law enforcement and intelligence agencies. These agencies often have the most far-reaching powers and access to the most sensitive data. Over the past few years, they have also repeatedly and blatantly ignored the law. Structural improvements are essential if these institutions want to continue to be able to count on the legitimacy provided to them by the law and, with that, on people’s acceptance of their power.

Client-side scanning, confidentiality and Parliamentary pressure

A majority of Dutch Parliament has urged the cabinet to protect the right to end-to-end encryption at the national and also at the European level. And although the Minister of Justice and Security initially said she would do so, her choice of words left us worried. After more probing, we finally have a clearer picture of her stance on European measures that threaten confidentiality online.

In a letter to the Parliament, the minister claims that client-side device scanning (monitoring messages before encryption is applied) doesn’t undermine encryption and therefore she isn’t against it. It is disappointing that the minister has chosen to nitpick over the parliament’s focus on technology, rather than center the confidentiality of communications that the parliament obviously wants to protect. Imagine the government saying that although they wantto be able to look over your shoulder when you draft a letter, they won’t open the envelop once you send it—and therefore you have nothing to worry about.

It is now the Parliament’s turn to respond to the minister, and hopefully they’ll be able to break this semantic tug of war and bring the discussion back to what it’s actually about: to what extent will the cabinet guarantee people’s right to confidential communications?

And finally…

Last month, we reported on mayors wanting to be able to issues online exclusion orders, claiming chat- and social media spaces constitute “online public spaces”. An order issued by the mayor of Utrecht was challenged in court and—surprise surprise—the court ruled that the mayor had overstepped her authority.

In a worrying but not unsurprising response to the news, the mayor of Amsterdam—a city that claims to be a beacon of digital rights—said that despite concerns over the freedom of expression, she’d find a way to ban people from the internet anyway. We’re following the developments with interest.

Finally, the police published its guidelines on when it will and will not deploy facial recognition software (despite the absence of a legal framework), and we continue our quest to increase attention for deceptive patterns.

Check out the response to the public consultation of the European Commission on the fitness check of European consumer law as a form of unfair commercial practice, even when no monetary transaction takes place.

Contribution by: Evelyn Austin, Executive Director, EDRi member, Bits of Freedom