[Interview]: Curtailing the surveillance state? Anticipating the SyRI case judgment

The District Court of The Hague announced its judgement on 5 February in the case of SyRI (Systeem Risico Indicatie). They ruled the controversial surveillance system, created and used by the Dutch government to detect tax and welfare fraud, as prohibited due to violation of the European Convention on Human Rights (ECHR). This case has gained a lot of attention and raised privacy concerns around the world. On 6 February, a group of experts will reflect on the outcome and aspects of this case during a panel discussion at the Asser Institute.

What is SyRi?
The system, SyRi (Systeem Risico Indicatie) is an automated algorithmic system created to detect and analyse welfare fraud. The Ministry of Social Affairs and Employment developed the system to analyse data such as benefit information, personal debt reports as well as history of housing. The system collects data from individuals in order to measure their likelihood of misusing the benefit system and committing fraud. However, this system became immediately criticised for invading privacy, as well as being discriminatory in nature. 

What is the problem?
In recent years, privacy and the use of data has become a controversial topic. We are becoming increasingly more sceptical of how states are using our data in order to further national interest. It has gone so far that in 2016, the EU introduced the GDPR (General Data Protection Regulation) in order to make sure that people have more control over their own data, and that businesses can benefit from a fair playing field. However, with new regulations come grey areas that may be harder to supervise. Recently the Dutch government came under fire for the implementation of the SyRI system. A group of civil rights initiatives filed a lawsuit because the system showed to be not only an invasion of privacy, but also discriminatory, targeting low-income neighbourhoods. This lawsuit has drawn a great deal of attention and the District Court in The Hague will announce its decision on the 5 February. According to Dr Dimitri Van Den Meerssche, postdoctoral researcher at the Asser Institute and moderator of the panel, this judgment can have major consequences for the ways in which digital surveillance practices are legally regulated and contained in the future.

In order to learn more about SyRI and its influence, we interviewed assistant professor at the Vrije Universiteit Amsterdam and Chairman of the Platform for the Protection of Civil Rights Tijmen Wisman, who will be one of the panellists during the event.

1. What are the legal concerns of the SyRi system in your opinion?

Privacy is not the main issue; the rule of law and the individual security of citizens are at stake. The laws introducing SyRI do not meaningfully limit the power of the executive bodies involved. The law is filled with vague language that refers to the ‘necessity’ of the system, the ‘safeguards’ that are in place, and a set of extremely broad purposes. The administration has a very broad margin to decide which data they will collect and have the freedom to use secret risk models to analyse this data, co-opting the rationale behind operating practices of intelligence agencies. To my knowledge, this is an unparalleled expansion of power of the executive branch, which exposes every adult citizen in the Netherlands to the danger of arbitrary and opaque interferences. All of this also has a tremendous damaging effect on the relationship of trust that you should have between citizens and the state.

2. What are the specific human rights concerns raised in the case?

If we focus on the right to privacy, there are three important requirements that the SyRI system does not meet: foresee-ability, necessity and proportionality.The first is the requirement of foresee-ability. Laws that grant power to public authorities should be formulated with a high level of precision, especially when these powers have technologically advanced methods that allow automated surveillance on a large scale. The purposes for which SyRI is implemented are formulated very broadly covering three wide policy areas. In its implementation, the system is built to collect data on individuals in seventeen categories, such as (tax information, housing data, debt data, benefits etc.). The majority of these categories are not restricted, meaning they are available for other authorities that can re-use the data within a SyRI-project. There is no transparent way for citizens to know in what way their data is used. 

The second and third issues are the necessity of the system and the proportionality of the interference. In some cases that concern the automated processing of personal data, the European Court of Human Rights (ECtHR) requires a motivation justifying the reason to collect and process data. In principle, it does not allow the processing of data of people who are not linked to a crime or offence. There are exceptions, but these can be typically found in cases concerning intelligence agencies and concern the purpose of national security.

The State Secretary van Ark indicated in a recent letter about a SyRI-project that the law on social security does not differentiate in its enforcement between intentional and unintentional offences. To use a dragnet-system like SyRI is – as the UN Special Rapporteur Philip Alston describes in his amicus brief – ‘the digital equivalent of fraud inspectors knocking on every door in a certain area and looking at every person’s records in an attempt to identify cases of fraud.’ I would add that they look for far more than fraud.

3. What has been the outcome of using a surveillance system like this?

According to the newspapers, the project thus far has not reached any useful results for the parties cooperating in SyRI. Instead, it left entire neighbourhoods feeling unsafe and exposed, because the government is toying around with their data. A social worker from Rotterdam told me that the neighbourhoods where SyRI is now implemented used to have a helpdesk to provide support to file tax and welfare forms. However, this has since been closed due to budget cuts. This is problematic because filling out these forms without making any mistakes is a challenge for anyone, something that our previous Ombudsman Brenninkmeijer already recognised in 2013. SyRI is programmed to identify these mistakes through an automated process. This information is then used to subsequently punish them for this. Whether a signal is false or correct is not the main issue if either way can result in punishment of people who are unaware of any wrongdoing.

4. What do you hope the outcome of the lawsuit will be? And which factors do you think the decision will depend on?

I hope the court will declare the legal basis of SyRI irreconcilable with the right to privacy and the GDPR and therefore invalid. The central question during the court case was about the severity of interference with privacy. The Ministry claimed that they only use the system to compare data that different administrative bodies collected, and are using a very limited set of data, whilst the coalition claimed that SyRI is a datamining and risk profiling system, which uses a very large set of data. The court also recognised and described this with the use of the dragnet-metaphor. One of the peculiarities is that the risk model used in the system is secret to the coalition as well as the court.

5. In your experience, what would be the most efficient and alternative way to combat welfare and fraud detection concerns without violating human rights? Could you give us some recommendations?

The legal basis of SyRI covers a much broader area than only the detection of welfare fraud, although most projects seem to aim for this. However, when talking only about welfare fraud at least, it is safe to say that we are ignoring the root cause of the problem and treating only the symptoms. Instead of asking people for the relevant data at the gate, we have decided to set up a high-tech surveillance system at the exit. An easier way to deal with this would be, as suggested by Carsten Herstel (Director Ministry of Social Affairs), to make sure the government is notified when a house owner receives a rent subsidy.

We know for a fact that the grand part of ‘fraud’ in the social security is not committed willingly, but is a result of people not knowing the rules, people forgetting to mention a change in their situation, or administrative faults from the side of the government. Even educated people in Holland need help with their taxes and social services, as it is a very complex system. It is better to create a data administration that aims to prevent people from making mistakes, instead of surveillance systems that try to catch people that made them.

About Tijmen Wisman
Tijmen Wisman is assistant professor at the Vrije Universiteit Amsterdam who wrote his PhD on the EU Internet of Thing policy and the right to privacy. He teaches in privacy, data analytics and internet governance. Besides his work as an academic, he chairs the Platform for the Protection of Civil Rights, an organisation that challenged the Dutch government for adopting the law introducing the System Risk Indication (SyRI). 

More about the event
On Thursday 6 February, the Asser Institute organises a panel discussion on this landmark case. Panelists include the lawyers involved in the SyRI case, leading scholars specialised in the legal and political questions concerning the use of artificial intelligence by the state, and prominent public commentators on the social impact of technological transformation. While the panel discussion will start from a discussion of the SyRI judgment, it will extend beyond the specific legal issues raised in this controversy to have a broader discussion on public authority, digital transformation and the enhancement of trust through law.

This event is part of the Asser research strand on Dispute Settlement and Adjudication in International and European Law. This research strand is organised around inquiry into attributes of trustworthy dispute settlement in international adjudication. More information on the event, and to register click here.