SyRI cannot be suspended by the court- SyRI may as well be deployed with a few amendments to the SUWI legislation
The impression has been erroneously created that the court ordered the State to immediately stop SyRI (System Risk Indication). For example, UN reporter Philip Halston reports: "This is the first time a court has stopped using digital technologies by welfare authorities on human rights grounds" (see also: "Landmark ruling by Dutch court stops government attitudes to spy on the poor. UN expert Halston ").
The dictum of the Court of The Hague is widely misunderstood. The essence of the dictum is that the system can still be used. Only art. 65 of the SUWI Act and Chapter 5a of the SUWI Decree have been declared non-binding (see section 7.2). The persons concerned have therefore received no more than a legal explanation. The precedent effect that, according to the UN reporter, is based on the judgment, is therefore not correct. The verdict is presented as a victory that is a sham in practice.
The State may continue to use SyRI, provided that the legal basis meets the ECtHR criteria (art. 8 paragraph 2 ECHR)
Points for discussion about the permissibility of SyRI: an in-depth look into the most remarkable statements in the SyRI case
One should not lean back after the Court's ruling in the SyRI case. The judges have not been able to discontinue SyRI, but apart from that issue, the discussion about the admissibility of systems such as SyRI should be an ongoing one. It is not about a subject that covers just the 'issues of the day'. The media attention for SyRI was mainly generated around the theme of 'discrimination against socially disadvantaged neighborhoods'. Considering the scope of SUWI, SyRI can be applied to anyone who has to claim tax allowances and/or social security. Every citizen can be subjected to dataveillance and Big Data analysis, risk assessments and predictive algorithms.
2. According to the Explanatory Memorandum to the SUWI Decree, the indicators and the risk model must be clear in order to prevent a fishing expedition.It goes to show that a risk model had not been developed before the enforcement of the SUWI Decree. The development of the risk model for SyRI was considered a future event (see 4.23-4.24).
Has a fishing expedition been realized with the deployment of SyRI?
3. The court is of the opinion that the SyRI legislation is in the interest of economic well-being and therefore serves a legitimate purpose (section 6.4).
4. The Council of State noted in 2014 that the list of data to be processed in SyRI is so broad that it is impossible to imagine personal data that will not be covered by SyRI. The list of personal data is meant to broaden the scope as much as possible.
6. The 'black box'-character of SyRI prevents the court from assessing whether and any risk profiles have been developed in SyRI (see 6.53) and therefore, what these risk profiles entail.
7. The court has not obtained any insight into the validation of risk models and the verification of risk indicators in SyRI (see 6.89).
8. The court does not decide whether the SUWI legislation regarding the use of SyRI is compatible with the GDPR, art. 6 ECHR ('equality of arms') and art. 13 ECHR ("right to effective national legal protection").
The impression has been erroneously created that the court ordered the State to immediately stop SyRI (System Risk Indication). For example, UN reporter Philip Halston reports: "This is the first time a court has stopped using digital technologies by welfare authorities on human rights grounds" (see also: "Landmark ruling by Dutch court stops government attitudes to spy on the poor. UN expert Halston ").
The dictum of the Court of The Hague is widely misunderstood. The essence of the dictum is that the system can still be used. Only art. 65 of the SUWI Act and Chapter 5a of the SUWI Decree have been declared non-binding (see section 7.2). The persons concerned have therefore received no more than a legal explanation. The precedent effect that, according to the UN reporter, is based on the judgment, is therefore not correct. The verdict is presented as a victory that is a sham in practice.
Read consideration 6.7 of the Court of The Hague in the SyRI case: "The SyRI legislation [read: SUWI, M.Bouter] does not meet the requirements set out in Article 8, paragraph 2 of the ECHR that interference with private life should be necessary in a democratic society- that is, necessary, proportional and subsidiary in relation to the intended goal.The SyRI legislation does not meet the 'fair balance' that must exist between the social importance of the SyRI legislation and the violation of private life through this legislation, in order to be constitute a justified infringement. In particular, the court takes into account the principles of transparency, purpose limitation and data minimization. The legislation is insufficiently transparent and verifiable. " (ECLI: NL: RBDHA: 2020: 865). See also legal consideration 6.111: "Regarding the use of SyRI, the legislation is not sufficient". From the court's considerations cannot be derived that the deployment of SyRI, or a comparable system involving Big Data analysis/predictive algorithms/profiling, is impermissible or should be deemed unlawful.
The State may continue to use SyRI, provided that the legal basis meets the ECtHR criteria (art. 8 paragraph 2 ECHR)
In order to avoid false expectations from those involved, it should be noted that each case must be dealt with individually. For the publication of the risk models used and the destruction of the collected and processed personal data, the parties involved will have to use the administrative procedure, but the State does not have to disclose the risk models and the destruction of the data collected and processed within the framework of SyRI is not mandatory (considerations 6.115 and 6.117).
The State may continue to use SyRI, provided that the legal basis meets the ECtHR criteria in respect of art. 8 paragraph 2 ECHR. I expect that the legislator will amend art. 65 of the SUWI Act and / or that a system comparable to SyRI has already been developed and will soon be introduced, probably without notice.
One should not lean back after the Court's ruling in the SyRI case. The judges have not been able to discontinue SyRI, but apart from that issue, the discussion about the admissibility of systems such as SyRI should be an ongoing one. It is not about a subject that covers just the 'issues of the day'. The media attention for SyRI was mainly generated around the theme of 'discrimination against socially disadvantaged neighborhoods'. Considering the scope of SUWI, SyRI can be applied to anyone who has to claim tax allowances and/or social security. Every citizen can be subjected to dataveillance and Big Data analysis, risk assessments and predictive algorithms.
1. Systems such as SyRI apply to every citizen who receives tax benefits, allowances or social insurance.
2. According to the Explanatory Memorandum to the SUWI Decree, the indicators and the risk model must be clear in order to prevent a fishing expedition.It goes to show that a risk model had not been developed before the enforcement of the SUWI Decree. The development of the risk model for SyRI was considered a future event (see 4.23-4.24).
Has a fishing expedition been realized with the deployment of SyRI?
3. The court is of the opinion that the SyRI legislation is in the interest of economic well-being and therefore serves a legitimate purpose (section 6.4).
4. The Council of State noted in 2014 that the list of data to be processed in SyRI is so broad that it is impossible to imagine personal data that will not be covered by SyRI. The list of personal data is meant to broaden the scope as much as possible.
In addition, the Council of State has pointed to a major objection to Deep Learning techniques that is at the heart of SyRI: the human user does not understand why the system concludes that there is a (fraud) connection. An administrative body that bases its actions on such a system cannot justify its actions and cannot justify its decisions (see 6.46).
5. The State has not provided the court in the SyRI case with objectively verifiable information. The court has not been given insight into a risk model and indicators, so that the judge cannot assess the application of SyRI (see 6.49). The court had to apply a factual assumption in the absence of information from the State (see 6.51). The Court of the Hague remains uncertain about what SyRI actually is and what this system entails.
5. The State has not provided the court in the SyRI case with objectively verifiable information. The court has not been given insight into a risk model and indicators, so that the judge cannot assess the application of SyRI (see 6.49). The court had to apply a factual assumption in the absence of information from the State (see 6.51). The Court of the Hague remains uncertain about what SyRI actually is and what this system entails.
6. The 'black box'-character of SyRI prevents the court from assessing whether and any risk profiles have been developed in SyRI (see 6.53) and therefore, what these risk profiles entail.
7. The court has not obtained any insight into the validation of risk models and the verification of risk indicators in SyRI (see 6.89).
8. The court does not decide whether the SUWI legislation regarding the use of SyRI is compatible with the GDPR, art. 6 ECHR ('equality of arms') and art. 13 ECHR ("right to effective national legal protection").
