Courts must review complaints about intelligence surveillance
Towards the end of 2020 it got through the media: The Swiss Federal Supreme Court ruled that a complaint that was made because of the cable investigation was approved. Now the matter goes to the Federal Administrative Court, which must clarify whether the plaintiff's fundamental rights had actually been violated.
Cable surveillance as part of mass surveillance
The Swiss authorities can, without cause or suspicion, carry out what is known as cable surveillance, which enables mass surveillance. This means that the data traffic that goes back and forth between Switzerland and the rest of the world is continuously monitored. The new Intelligence Service Act of 2017 made this measure possible, which the Swiss population approved in a vote.
The Swiss digital society had now filed a complaint with the Federal Administrative Court, precisely for the reason that it was a matter of unreasonable surveillance that was independent of any suspicion. The court, however, denied the complainants the right to appeal. The reason for this decision: With the right to information under data protection law, it would be possible to file a complaint against the secret service in the event of violations of fundamental rights. A lawful review could thus be enforced in court.
The right to information was not sufficient
The right to information was limited and was previously found to be unsuitable, because it only applied to data that had been subsequently saved in an information system of the secret service and that could be assigned to a person. However, the mass surveillance automatically starts with the data streams and records all persons who cannot make sufficient use of their right to information. The declared aim of cable reconnaissance is precisely this automatic scanning: It should monitor as many people as possible and evaluate communication with secret search terms.
Everyone could be affected by the measures
On December 1, 2020, the Federal Supreme Court issued the judgment in which the complaint of the Digital Society Switzerland was approved and the previous judgment of the Federal Administrative Court was overturned. The reason: The measures associated with the cable reconnaissance are secret and are not disclosed to those affected afterwards. As a result, there would be no protection against the measures.
The Federal Supreme Court recognized that any person could be affected by the mass surveillance and that communication within Switzerland would also be monitored in the event of unprovoked mass surveillance. The court was of the opinion that the electronic scanning of the data compromised the secrecy of telecommunications and that the right to informal self-determination was violated with the mass surveillance. This is in turn protected by the Federal Constitution and also by the European Convention on Human Rights. The complainants could not denounce any individual measures, but would have to challenge the entire cable investigation system in the absence of further information. Those affected who feel that their basic rights have been violated can now turn to the European Court of Human Rights in Strasbourg.
Conclusion: National courts must check compliance with fundamental rights
Complaints about fundamental rights that have not been observed must not simply be thrown out, as the Federal Supreme Court's ruling now shows. For example, data has to be protected and every citizen has the right to informal self-determination. That in turn is not possible with a mass scanning of the communication under intelligence aspects, especially since the citizens cannot even get information about the data stored about them. With the current technical means, however, it is not possible to exclude individual persons from the surveillance, because only the comprehensive surveillance of communication can be profitable for the purposes of the secret services. But if this is actually not possible and all communication has to be monitored at all times, this cannot be reconciled with the basic right and the cessation of cable surveillance could be the only effective means to protect basic rights.
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