A guest post by Jean-Marc Hensch.

Judgments handed down by the European Court of Justice (ECJ) are legally irrelevant for Switzerland because, as its name fails to indicate, it is not a European but, rather, an EU court (which the media frequently confuses, but that’s another matter). Nevertheless, it’s worthwhile to look at the bigger picture.

Court rebukes total surveillance of citizens
In a remarkable and groundbreaking ruling, the ECJ recently decided that the retention of data in the EU countries is inadmissible, since the unconditional mass storage of data about persons for whom no suspicious circumstances exist is not admissible from the perspective of basic rights. The Court mainly took issue with the enormous number of persons affected: “The 2006/24 Directive extensively affects all persons who use electronic communications services, including when the persons whose data is being retained are not even indirectly involved in a situation that might give rise to criminal prosecution. Thus, [the Directive] is also applicable to persons for whom there is no evidence whatsoever of their activities possibly even being indirectly or remotely connected to serious crimes.” (quoted from margin No. 58)

Inadmissible infringement on basic rights
Based on detailed considerations, the ECJ therefore concludes: “It should be noted that the Directive contains an infringement on basic rights, which is of great magnitude and of particular gravity within the legal order of the Union, but does not contain provisions for ensuring the infringement is actually limited to the absolute minimum.” (quoted from margin No. 65)

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A red-hot topic for Switzerland
Here in Switzerland, the judgment is therefore significant because the legislative body is currently in the process of amending the Federal Act on the Surveillance of Post and Telecommunications (BÜPF) to extend the data retention period from six to twelve months. As first chamber, the Council of States waved through these (and all other crucial) provisions, without even examining them seriously.

High risk of abuse
Even if the provisions of the BÜPF bill cannot be compared with the text of the Directive in every context, the ECJ would likely veto it here as well. This is because it is well understood that the purpose of data retention is not defending against imminent threats or crimes against the state. Even for a relatively minor offense (e.g. property damage), the authorities can not only investigate the communications activities of a person but those of numerous other uninvolved persons as well. Any extension to the data retention period opens up the possibility of more intense surveillance of the general population (not to mention the risk of abuse in the case of companies subject to data retention requirements).

Hardly an efficient instrument
Data retention has not proven effective either. In Denmark, for example, a 12 month retention period has been enshrined extensively in legislation for the past five years. According to a report published by the Justice Department, the retained data is, in reality, hardly ever used, because actual investigations quickly showed that the practice offered hardly any additional benefit.

Principle of proportionality. Ever heard of it?
The fundamental flaw of data retention is its lack of moderation and complete disregard for the proportionality principle. And this runs like a central theme throughout the entire BÜPF bill. It translates more or less to an unaltered wish list of law enforcement authorities. Concessions were only made if the provisions were impossible or unenforceable, while there is practically a complete lack of critical scrutiny of the intended curtailment of civil liberties, of the implications for the private sphere as well as the proportionality of the individual provisions. In this context, it is telling that there is no section discussing the issue of the private sphere or the principle of proportionality (which, in the case of this law, is certainly crucial).

Members of parliament should react now
Although the judgment of the ECJ is not binding for Switzerland, our parliamentarians would still be wise to take the time to consider the judgment and factor the deliberations highlighted in the judgment into their own legislation. After all, there is no reason why we should take our basic rights as Swiss citizens less seriously than those of EU citizens!

Data retention in Europe is dead. What about in Switzerland?

Jean-Marc Hensch

Jean-Marc Hensch is Managing Director of the Association Swico. Swico is the association of ICT providers and other related industries in Switzerland. He is committed as a trade association for its members' interests in politics, economy and society.

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