Privacy activist loses appeal over anonymous OV chip card!

The Dutch Data Protection Authority is not required to investigate the anonymous OV chip card and various alleged privacy violations in public transport. The Administrative Jurisdiction Division of the Council of State ruled in three appeals that were brought by privacy activist Michiel Jonker. Jonker had asked the privacy supervisor to act against alleged privacy violations in public transport.

Michiel vs. the electronic trash containers

Michiel Jonker filed several lawsuits against the Dutch Data Protection Authority, which in some cases was forced to investigate further cases where Jonker felt that his privacy was being compromised. He is now known, initially unintentionally, as a 'privacy activist'. In 2014 he started his first fight against the waste pass (afvalpas). The municipality of Arnhem introduced the waste pass because according to the multiple reports, companies and residents of surrounding villages also dumped their waste in the containers. This solution was also introduced in other places in the Netherlands. The waste pass had to guarantee that the containers did not become too full and that only locals could use them. However, not everyone accepted the proposed solution. One of these people was Michel, who noticed the trouble that could result from this plastic card. What concerned him about the idea, was the fact that it was connected to his home address. Additionally, it turned out that the pass collects some unnecessary personal data. The reasons for the processing seemed to be unclear. According to him, knowing that someone takes out their garbage every night at 8:00 PM, and by analyzing those patterns, could lead to various assumptions, such as: the time of the year when a given person is away on holidays. Not considering the possibility of data breach, the mere processing of such information (who and where stores his trash) seemed to be ridiculous to him. After his complaint to the Dutch DPA, the municipality of Arnhem decided to withdraw the use of waste passes.

Public transport card issues

Michiel remained active in the field of privacy. His next concern was the ‘anonymous’ OV transport card. A solution widely used by NS since 2011. The matter was connected to the refusal of cash payments for one-time bus tickets by the transport company Connexxion. Secondly, Jonker mentioned three infringements by NS, namely refusing to reimburse the remaining balance on anonymous OV chip cards if the holder does not provide NS with their personal details, refusing international train tickets by NS employees at station counters and charging additional "service costs" if holders of anonymous OV chip cards pay cash for topping up their balance. Finally, the privacy activist stated that the "anonymous" OV chip card is not anonymous. Two unique numbers are applied to each card so that the card and the cardholder can be tracked, says Jonker. In addition, he speaks of "privacy discrimination" against holders of a discounted hours subscription, because they do not receive a discounted hours discount if they travel with an anonymous public transport chip card. Furthermore, holders of an anonymous OV chip card only get their money back if they "de-anonymize" their OV chip card, so that not only the delayed journey, but also all other journeys can be registered by NS.

Ongoing dispute

Jonker wanted the Dutch Data Protection Authority to investigate these alleged infringements and to take enforcement action, but was ruled against by the court in 2019. He then appealed to the Council of State, which has now declared all appeals unfounded. "With these rulings, the Council of State has de facto abolished the right to privacy in public transport. “Every individual traveller may be followed and registered everywhere, without having to demonstrate a specific need for this," says Jonker. In the later interviews, he stated that Dutch transport companies are collectively trying on all sides to loot the travel data (places and times of people's private journeys), and to discriminate against those who are trying to preserve their privacy, making it as difficult as possible. He emphasised the fact that the situation is stimulated by various ministries and other government agencies such as het Centraal Bureau voor de Statistiek (CBS). Despite losing at the domestic stage, he is not going to give up his fight. The next step is to petition the European Court of Human Rights (ECtHR).

More information and the interview with Michiel is available here:

https://potkaars.nl/blog/2021/7/7/de-veronderstelling-dat-je-het-recht-hebt-anoniem-door-het-leven-te-gaan-ter-discussie-gesteld-door-de-ns