The Swiss Federal Administrative Court has declared the suspicionless mass surveillance by the secret service illegal. Millions of messages are scanned daily, including those from journalists and lawyers.
The Federal Administrative Court in St. Gallen has determined in a 211-page ruling that the so-called radio and cable surveillance by the Federal Intelligence Service violates the Swiss Federal Constitution and the European Convention on Human Rights. The judges criticise serious deficiencies in the mass collection of emails, text and voice messages. The judgement is dated 19 November – the Digital Society Switzerland was the plaintiff and has now made it public.
The secret service and the army’s “Cyber Command” have been systematically monitoring digital communication that crosses the national border since 2017 – officially on the grounds of wanting to track events abroad. Telecommunications providers grant the authorities access to their interfaces, where they can search data streams for IP addresses, telephone numbers or keywords. A similar procedure is practised by the Federal Intelligence Service in Germany, which became known after the revelations by Edward Snowden over a decade ago.
The Swiss court has now established that domestic communication is “with sufficient probability” also captured when monitoring foreign interfaces. This is because communication between Swiss citizens also frequently runs via foreign servers and thus becomes subject to surveillance. Reliably filtering out domestic persons or traffic from the intercepted data streams is technically hardly possible.
The judgement also criticises the lack of protective mechanisms: there is no adequate protection against misuse, no guarantee that only relevant and correct data are processed, and no provisions for protecting journalistic sources or communication between lawyers and clients. Furthermore, effective oversight is lacking. Those affected also have no effective legal remedy for subsequent review.
Six activists, journalists and one lawyer, together with the Digital Society association, had brought the case. Among them are Marcel Bosonnet, the lawyer of whistleblower Edward Snowden, as well as Andre Meister from the German magazine netzpolitik.org.
“The Digital Society is pleased that the Federal Administrative Court has concluded that radio and cable surveillance violates fundamental rights,” said Erik Schönenberger, co-director of the association. The organisation is calling for the immediate cessation of cable surveillance, as the deficiencies identified cannot be remedied.
Although the court has declared the practice illegal, it is granting the secret service and politicians a five-year period to remedy the legal deficiencies. A revision of the Intelligence Service Act is currently underway in any case. The authority itself stated that it would examine the judgement thoroughly. Whether an appeal will be lodged remains open.
Published in German in „nd“.
Image: Interception station in Leuk, Siwtzerland (Martin Steiger, Wikipedia, CC BY-SA).
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