Fundamental Rights: Court Halts Mass Surveillance of Swiss Intelligence Service

The extensive practice of the Swiss Federal Intelligence Service (Nachrichtendienst des Bundes, NDB) of comprehensively intercepting cross-border communication through radio and cable surveillance is facing its end. In a ruling on November 19, the Federal Administrative Court (BVGer) decided that the current method of information gathering is not compatible with the Federal Constitution and the European Convention on Human Rights (ECHR) (Ref.: A-6444/2020). The main reason: the form of "strategic signals intelligence" (Sigint) practiced in Switzerland offers insufficient protection against misuse and thus violates citizens' fundamental rights.

The NDB obtains information about security-policy relevant events abroad by intercepting telecommunications. To this end, all cross-border communication is captured and automatically searched using keywords (selectors). While purely Swiss communication – i.e., any exchange where the sender and receiver are located in the Alpine republic – may not be used. The capture of broad data streams as such has already been classified as mass surveillance by the Federal Supreme Court (BGer)). In fact, the NDB itself admitted to conducting suspicion-independent dragnet searches.

The Digital Society association and several private individuals, including journalists and a lawyer, filed the lawsuit. They complained of a violation of their fundamental rights: due to the indiscriminate surveillance, there was a risk that their data would also be processed and possibly evaluated. The BGer had already determined in 2019 that the complainants were entitled to demand the cessation of radio and cable surveillance. It instructed the BVGer to comprehensively examine the system for its conformity with the Constitution and the ECHR.

No effective safeguards against misuse

The BVGer subjected the espionage regime to a strict review, guided by the requirements of the European Court of Human Rights (ECtHR). In the Big Brother Watch v. United Kingdom ruling, the ECtHR demanded continuous safeguards against misuse. The ECtHR placed particular emphasis on prior independent authorization, continuous supervision by an independent authority, and the existence of an effective remedy for ex-post review.

In its now published ruling, the BVGer acknowledges that the circumstances under which communication may be monitored are sufficiently foreseeable. It also approved that cable surveillance must be authorized in advance by an independent court. Nevertheless, the court concludes that the applicable law does not offer sufficient protection against misuse. In particular, it is not guaranteed that the NDB only processes relevant and correct data.

According to the decision, it is serious that the law contains no instruments to protect journalistic sources and other particularly sensitive communications, such as those between a lawyer and client. Furthermore, neither sufficiently effective control of information gathering is ensured, nor is there an effectively usable legal remedy for affected parties for an ex-post check. The infringement of the fundamental and convention rights of the complainants is therefore not justified.

Five years for the legislator

With this outcome, radio and cable surveillance would actually have to be discontinued entirely. However, the court granted the legislator a generous period of five years; considering the importance of surveillance for the NDB's information gathering and the ongoing legislative revision, the deficiencies are to be remedied by then. If a legally compliant state does not exist by 2030, radio and cable surveillance must be definitively discontinued. The ruling can still be appealed to the Federal Supreme Court.

Digital Society expressed its delight at the success of its complaint. It considers the ruling to be a historic decision. According to the civil rights organization, mass surveillance by the intelligence service is an infringement of freedom that must be stopped immediately. The legal flaws are too great to maintain the practice.

In Switzerland, the NDB fulfills the tasks of a foreign intelligence service as well as a domestic intelligence service for the protection of the constitution. It is most comparable to a combination of the German Federal Intelligence Service (BND) and the Federal Office for the Protection of the Constitution (BfV). In Germany, the Federal Constitutional Court declared the data vacuum cleaner used by the BND for Sigint purposes to be unconstitutional in the aftermath of the Snowden revelations. However, the Bundestag considered the tool to be indispensable in principle and only reformed the conditions of its use.

(emw)