The Federal Administrative Court declares the intelligence service’s cross-border radio and cable surveillance to be contrary to fundamental rights. Strategic mass surveillance of cross-border communications violates the Federal Constitution and the ECHR – at least in its current form. The legislature has five years to rectify the situation. What does this mean for companies, media professionals, and digital security in Switzerland?
In its ruling A-6444/2020, the Federal Administrative Court (FAC) decided that the current structure of cross-border radio and cable surveillance by the Federal Intelligence Service (FIS) is not compatible with the Federal Constitution (FC) and the European Convention on Human Rights (ECHR). The Federal Supreme Court had already stated in its decision 1C_377/2019 that radio and cable surveillance is a form of mass surveillance. Broad cross-border communication flows are recorded and evaluated on the basis of search terms. Although purely Swiss communications may not be used, there is a real risk that data relating to persons located in Switzerland may also be affected.
Strategic cable surveillance is regulated in Art. 26 ff. of the Intelligence Service Act (NDG) and is one of the special procurement measures. Together with other instruments, it forms the legal basis for the FIS’s strategic telecommunications surveillance. The ruling therefore concerns not only questions of enforcement, but also the constitutional viability of the legal concept itself.
On the instructions of the Federal Supreme Court, the Federal Administrative Court had to examine whether the legal regime satisfied the requirements of Art. 13 of the Federal Constitution (protection of privacy), Art. 36 of the Federal Constitution (restrictions on fundamental rights) and Art. 8 of the ECHR.
Legal basis: Art. 13 of the Federal Constitution, Art. 35 and Art. 36 of the Federal Constitution, and Art. 8 of the ECHR
a) Interference with the scope of protection
Strategic telecommunications surveillance interferes with the confidentiality of telecommunications and the protection of privacy and personal data (Art. 13 BV). Art. 8 ECHR also protects the confidentiality of communications. The mere collection and filtering of large data streams constitutes an interference, regardless of whether the person concerned is specifically identified.
Strategic telecommunications surveillance must be distinguished from individualized surveillance under the Criminal Procedure Code or from targeted intelligence measures against specific persons. While the latter are linked to a concrete suspicion of a crime or a specific threat, strategic surveillance is characterized by the fact that it captures broad communication flows without any initial individual suspicion and only selects them in a second step. This structure explains the increased requirements for transparency, control, and legal protection.
b) Justification test
According to Art. 36 of the Federal Constitution, restrictions on fundamental rights are only permissible if they:
- are based on a sufficient legal basis,
- are in the public interest,
- are proportionate, and
- preserve the core content of the fundamental right.
In Big Brother Watch and Others v. United Kingdom (2021), the ECtHR specified that strategic mass surveillance is only permissible if “end-to-end safeguards” are in place:
- prior independent authorization,
- ongoing independent oversight,
- effective post-facto legal remedies.
Article 35 of the Federal Constitution must also be taken into account, according to which fundamental rights must be upheld throughout the legal system and all state organs are obliged to observe them. This implies a positive duty on the part of the legislature to design surveillance instruments in such a way that systemic threats to fundamental rights are minimized.
Analysis by the Federal Administrative Court: Structural deficits
The Federal Administrative Court first acknowledges that radio and cable surveillance is based on a formal legal basis in the Intelligence Service Act and that the preservation of national security constitutes a legitimate public interest within the meaning of Art. 36 para. 2 of the Federal Constitution and Art. 8 para. 2 of the ECHR. According to the case law of the ECtHR, states are in principle authorized to introduce systems of strategic or mass surveillance, provided that these are accompanied by sufficient guarantees under the rule of law. In this sense, the court does not question the security policy objective as such, but examines the specific design of the surveillance regime on the basis of constitutional and convention law requirements.
The criticism focuses on structural deficits in the protection system. The NDG does provide for approval by the Federal Administrative Court and supervision by the independent supervisory authority for intelligence activities (AB-ND). However, in the Court’s view, these mechanisms are not sufficient in their specific form to ensure continuous, substantial, and effective control of all procedural steps. In particular, there is no coherent overall concept that ensures the entire process of information gathering—from the selection of search terms to data collection and evaluation to storage and disclosure—is consistently protected under the rule of law.
A particularly serious shortcoming concerns the lack of specific protection for particularly sensitive communications. The current regime does not contain sufficiently clear and effective provisions for the protection of journalistic sources. In view of the central role of the media in democratic decision-making and the freedom of the media enshrined in Article 17 of the Federal Constitution and Article 10 of the ECHR, this aspect is of particular importance. The protection of informants is fundamental to investigative journalism; surveillance without specific protective mechanisms has a potentially chilling effect that extends beyond the specific individual case.
The court takes a similarly critical view of the protection of lawyer-client communications. Lawyer-client privilege is a fundamental component of the right to a fair trial and is closely linked to Art. 29 of the Federal Constitution and Art. 6 of the ECHR. If there is a possibility that confidential client communications may be recorded and evaluated as part of broad surveillance measures without specific filtering or exclusion mechanisms being guaranteed by law, this affects the core area of constitutional rights of defense. The court recognises this as a significant shortcoming. Depending on the circumstances, such a structural threat to the confidentiality of the client relationship may also affect Art. 32 of the Federal Constitution, insofar as it impairs the effective exercise of constitutionally guaranteed rights of defense.
The Federal Administrative Court also objects to the structure of the supervisory authority. According to the case law of the ECtHR, effective control of strategic surveillance requires an independent supervisory authority that is sufficiently equipped institutionally and has effective powers. Although supervisory mechanisms do exist in Switzerland, the court considers that these are not sufficient to ensure continuous and substantial control of all relevant procedural steps. The decisive factor is not the formal existence of a supervisory structure, but its actual effectiveness. As a supplementary note on the system, it should be mentioned that Switzerland has, among other things, a specific intelligence service supervisory authority (AB-ND) for this purpose. However, from the perspective of the ruling, the problem lies not in the “mere existence” of such bodies, but in the effectiveness and consistency of control over all steps relevant to the proceedings.
Finally, there is a lack of sufficiently effective subsequent legal remedies. Those affected have virtually no opportunity to find out whether they have been subject to surveillance measures, let alone have them reviewed by a court. This means that legal protection remains largely abstract. However, according to Art. 13 ECHR, an effective domestic legal remedy is required that is capable of substantively examining alleged violations of the Convention. A purely theoretical or practically unattainable legal remedy does not meet these requirements.
In its overall assessment, the Federal Administrative Court therefore concludes that the current structure of radio and cable surveillance does not meet the requirements of Articles 13 and 36 of the Federal Constitution and Article 8 of the ECHR. Although the intrusion into privacy is fundamentally justifiable, it proves to be disproportionate due to the lack of sufficient safeguards.
The legal consequence chosen by the court is noteworthy. Instead of prohibiting radio and cable surveillance with immediate effect, it grants the legislature a transitional period of five years to remedy the identified deficiencies within the framework of a revision of the Intelligence Service Act. This cautious approach takes into account the importance of information gathering for security policy and at the same time respects the legislature’s freedom of action. At the same time, however, the court has set a clear condition: if a constitutionally compliant situation is not achieved within this period, radio and cable surveillance must be discontinued. The ruling thus establishes a binding constitutional framework for the future design of strategic surveillance measures in Switzerland. This transition period acts as a continuation order. It is intended to prevent an immediate security gap, but is at odds with fundamental rights in that interventions can continue to take place during the transition period under a regime that the court considers insufficiently secure. This increases the pressure on future legislation to quickly standardize effective “end-to-end safeguards” across the entire data lifecycle (collection–selection–evaluation–storage–transfer–deletion).
The ruling is thus in line with increasingly restrictive European case law on strategic mass surveillance and specifies the minimum constitutional requirements for state access to data in the digital age.
Practical implications
The ruling of the Federal Administrative Court has significant practical consequences for businesses, professionals bound by professional secrecy, and government agencies. Even though the ruling concerns government action, the assessment of government access options can indirectly influence risk assessments relating to cross-border data flows (e.g., in the context of internal data compliance, supplier management, or internal corporate governance). For companies with international communications, it can therefore be assumed that the existing surveillance regime will be adapted and, in some cases, redesigned in the coming years. Such a revision is likely to inevitably bring with it new compliance requirements. In particular, it is to be expected that transparency, documentation, and possibly also cooperation obligations will be clarified or expanded. Companies are therefore well advised to review existing risk analyses and measures for securing confidential communications (e.g., encryption, need-to-know, graded communication channels) in terms of their need for adjustment and to adapt them if necessary.
For those bound by professional secrecy, the ruling has the effect of strengthening fundamental rights. The Federal Administrative Court has expressly emphasized that sensitive communication relationships—namely, journalistic sources and attorney-client communications—have not been sufficiently protected to date. This results in a clear legislative mandate to make the protection of these particularly confidential areas more precise and effective in the future. For media professionals, this means stronger source protection, which is central to the functioning of investigative reporting. For lawyers, professional secrecy is a key pillar of the right to a fair trial. In both areas, more specific legal protection mechanisms are to be expected, such as clearly defined filtering, deletion, or exclusion rules in the surveillance process.
There is also considerable pressure for reform on the part of the authorities themselves. Legislators are called upon to create a surveillance regime that meets constitutional and convention requirements. Future regulations will have to contain more precise guidelines on the selection and use of search terms (“selectors”) in order to ensure targeted and proportionate data collection. Likewise, institutionally and functionally effective, independent oversight will be indispensable, which not only exists formally but also enables substantial control in practice. In addition, effective remedies must be guaranteed for potentially affected persons so that legal protection does not remain merely theoretical. Finally, the legislature will have to implement special safeguards for sensitive communication content in order to ensure confidence in the constitutional design of state security instruments.
Conclusion and outlook
The A-6444/2020 ruling marks a turning point in Swiss surveillance law. The Federal Administrative Court confirms that strategic mass surveillance can be permissible in principle – but only under strict constitutional guarantees. The current design does not meet these requirements.
The legislature now has five years to create a regime that complies with the constitution. In doing so, it will have to strike a new balance between national security, economic competitiveness, and the protection of fundamental rights.
This development is of great strategic relevance for companies, legal advisors, and compliance officers. The debate on mass surveillance is not over – rather, it is entering a decisive phase.