Before the summary proceedings at the court in The Hague, the three citizens who initiated the case still have to get to grips with each other. This is because they have only just met each other and are now making a hasty attempt to prevent the crucial online identification program DigiD from coming under American management. The defendant is the State of the Netherlands.
Karin Ramaker has been campaigning for some time against the takeover of the company Solvinity, IT service provider for DigiD, by the American company Kyndryl. She launched an online petition in December that has now been signed almost 200,000 times. In it she argues that the data of Dutch citizens is not safe after that takeover.
Jacqueline Roig became convinced that she had to take action after State Secretary Eric van der Burg (BZK) gave permission at the end of April to extend the contract with Solvinity until August 2028. Because as soon as that company becomes American, DigiD may become more vulnerable to espionage or sabotage by the American government.
The third claimant is a nervous man who prefers not to have his name in the media, even though he wants to say a lot (his name is known to the editors). “We do this to stand up for democracy and European privacy law,” he says, among other things. Roig and Ramaker nod affirmatively. That is also the essence for them. “In fact, it should not be necessary for us to stand here at all. The House of Representatives is very unanimous on this file,” says Riog, who until recently worked in the software sector and is now on sabbatical. “What’s the point of us voting if we don’t listen to it?”
A majority in the House of Representatives has shown through motions that it does not want DigiD to end up with an American company. It has not yet reached that point, but according to the three, the ministry is not even trying to take DigiD under its own management or have it managed by another company.
Continuity of DigiD
“Have you received Pieter’s speaking notes,” lawyer Rawaz Sharan asks the man. He is referring to Pieter van Oordt, the privacy officer from Logius, part of the Ministry of the Interior for ICT matters. He recently sought publicity because he is convinced that efforts are being made within the ministries involved to ensure that the takeover goes ahead. He has now been suspended and plans to initiate proceedings on the merits, he says by telephone. He leaves the summary proceedings to others.
A day before the hearing, the State Secretary writes in response to parliamentary questions that he believes the contract extension is inevitable. “It is not possible to switch to another party before August 2026 without endangering the continuity and security of DigiD and other facilities,” says Van der Burg. Moreover, Logius does not currently have the knowledge and capacity to do it itself.
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During the short civil lawsuit, State Attorney Jeroen Naves explains what is meant by ‘continuity’: if DigiD does not work for a while, citizens can no longer file tax returns or apply for benefits, for example.
The arguments show the information inequality. The State Attorney is involved in negotiations with Solvinity and Kyndryl. These discussions are aimed at preventing outsiders – such as the American government – from gaining too easy access to personal data of Dutch citizens, should the takeover go ahead. He knows more than he is allowed to share, as he shows several times.
Other routes for ministry
“If you recognize that Trump can have his fingers in the picture when that share transfer takes place,” says lawyer Sharan, “then how can you continue?” He argues that the state is acting unlawfully with the extension, because it de facto accepts the risk that personal data of Dutch citizens will become accessible to American authorities. The three plaintiffs and their lawyer take their concerns as a starting point and base themselves largely on what entrepreneurs and IT experts say in the media.
The lawyer, who has only had a few days to prepare, says several times that there are other routes for the ministries involved. Various companies have reported via (social) media and there are IT experts who say that such a switch can be achieved within a few months. When plaintiff Riog is given the floor, she emphasizes that her concerns are reinforced by the lack of transparency. As a citizen, you have no way of knowing whether U.S. intelligence has demanded access to your data, she says. “I understand your concern,” says the judge.
Takeover is not yet a fact
The defense of the State Attorney overlaps in substance with the recent answers to parliamentary questions. Care takes time, the lawyer emphasizes. And adds that “the concerns are shared.” The state is well represented at the hearing: in addition to the national law firm Pels Rijcken, there are high-ranking officials and the spokesperson for the State Secretary – who are requesting interviews.
He repeats a number of arguments that probably weighed heavily on the judge, who, due to time pressure, first reports that he rejects the demands and will later put the arguments on paper with the verdict. These arguments appear to mainly concern the order in the process: the takeover is not yet a fact. This must be approved by the Minister of Economic Affairs, who is awaiting a decision from the Investment Assessment Bureau.
Moreover, it is not impossible that the contract will be terminated prematurely, the state attorney also said. One of the reasons for this is that the company has changed ownership. That is new information, because there was no clarity about it yet.
The hearing has not removed the legal pressure on the procedure. There are now several cases in which people or organizations demand participation or attempt to adjust the course of events.
Jacqueline Roig already took into account a negative verdict before the hearing: “If it doesn’t work, it won’t work. But at least we have stood up against it.”
