The Federal Administrative Court has ruled that the intelligence service’s cross-border radio and cable surveillance violates fundamental rights. Strategic mass surveillance of cross-border communications contravenes the Federal Constitution and the European Convention on Human Rights – at least in its current form. The legislature has been given five years to rectify the situation. What does this mean for businesses, media professionals and digital security in Switzerland?
In its judgment A-6444/2020, the Federal Administrative Court (FAC) ruled that the current structure of cross-border radio and cable interception by the Federal Intelligence Service (FIS) is incompatible with the Federal Constitution (FC) and the European Convention on Human Rights (ECHR). The Federal Supreme Court had already held in its judgment 1C_377/2019 that radio and cable intelligence constitutes a form of mass surveillance. It captures broad cross-border communication flows, which are analysed using search terms. Although purely Swiss communications may not be used, there is in fact a risk that data relating to persons located in Switzerland may also be affected.
Strategic cable intelligence is regulated in Art. 26 et seq. of the Intelligence Service Act (ISA) and is classified as a special intelligence-gathering measure. Together with other instruments, it forms the legal basis for the FIS’s strategic telecommunications intelligence. The judgment therefore concerns not merely questions of enforcement, but the constitutional validity of the legal framework itself.
On the instructions of the Federal Supreme Court, the Federal Administrative Court was required to examine whether the legal regime satisfies the requirements of Art. 13 of the Federal Constitution (protection of privacy), Art. 36 of the Federal Constitution (limitations 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 of the Federal Constitution). Art. 8 of the ECHR also protects the confidentiality of communications. The mere collection and filtering of large data streams constitutes an interference, regardless of whether the data subject is specifically identified.
Strategic telecommunications intelligence must be distinguished from individualised surveillance under the Criminal Procedure Code or from targeted intelligence measures against specific individuals. Whilst the latter are linked to a concrete suspicion of an offence or a specific threat situation, strategic intelligence is characterised precisely by the fact that it captures broad communication flows without any initial suspicion of an individual and only selects data in a second step. This structure explains the heightened requirements regarding transparency, oversight and legal protection.
b) Assessment of justification
Under Article 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 essence of the fundamental right.
In Big Brother Watch and Others v. United Kingdom (2021), the ECtHR clarified that strategic mass surveillance is only permissible if ‘end-to-end safeguards’ are in place:
- prior independent authorisation,
- ongoing independent oversight,
- effective ex post remedies.
Article 35 of the Federal Constitution must also be taken into account, according to which fundamental rights must be upheld throughout the entire legal system and all state bodies are obliged to respect them. This gives rise to a positive duty on the part of the legislature to design surveillance instruments in such a way as to minimise systemic threats to fundamental rights.
Analysis by the Federal Administrative Court: Structural Deficiencies
The Federal Administrative Court first acknowledges that radio and cable surveillance is based on a formal legal foundation in the Intelligence Service Act and that the protection of national security constitutes a legitimate public interest within the meaning of Article 36(2) of the Federal Constitution and Article 8(2) of the ECHR. According to the case law of the European Court of Human Rights, states are in principle authorised to introduce systems of strategic or mass surveillance, provided 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 structure of the surveillance regime against the requirements of constitutional and convention law.
At the heart of the criticism lie structural shortcomings in the protection system. Whilst the NDG provides for authorisation by the Federal Administrative Court and supervision by the independent supervisory authority for intelligence activities (AB-ND), the Court considers that, in their specific form, these mechanisms are insufficient to ensure continuous, substantial and effective oversight of all procedural steps. In particular, there is a lack of a coherent overall framework that consistently safeguards the entire process of information gathering – from the selection of search terms through data collection and analysis to storage and disclosure – in accordance with the rule of law.
A particularly serious shortcoming concerns the lack of specific protection for particularly sensitive communications. The current regime contains no sufficiently clear and effective provisions for the protection of journalistic sources. Given 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 deterrent effect (‘chilling effect’) that extends beyond the specific individual case.
The Court takes a similarly critical view of the protection of lawyer-client communications. Legal professional privilege forms a fundamental part of the right to a fair trial and is closely linked to Article 29 of the Federal Constitution and Article 6 of the ECHR. Where there is a possibility that confidential client-solicitor communications may be captured and analysed as part of broad-scale surveillance measures, without specific filtering or exclusion mechanisms being guaranteed by law, the core of defence rights under the rule of law is affected. The Court recognises this as a significant shortcoming. Depending on the circumstances, such a structural threat to the confidentiality of the client-solicitor relationship may also affect Article 32 of the Federal Constitution, insofar as it impairs the effective exercise of the constitutionally guaranteed rights of defence.
Furthermore, the Federal Administrative Court criticises the structure of the supervisory arrangements. According to the case law of the ECtHR, effective oversight of strategic surveillance requires an independent supervisory body that is institutionally adequately resourced and endowed with effective powers. Although supervisory mechanisms do exist in Switzerland, the Court considers that these are insufficient to ensure continuous and substantive oversight of all relevant procedural steps. What is decisive 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, amongst other things, a specific intelligence service supervisory body (AB-ND) for this purpose. From the perspective of the judgment, however, the problem lies not in the ‘mere existence’ of such bodies, but in the effectiveness and continuity of control over all procedural steps.
Finally, there is a lack of a sufficiently effective subsequent legal remedy. In practice, those affected have virtually no opportunity to find out whether they have been subject to a surveillance measure, let alone to have this reviewed by a court. As a result, legal protection remains largely abstract. Under Article 13 of the ECHR, however, an effective domestic remedy is required which is capable of conducting a substantive review of alleged violations of the Convention. A remedy that is merely theoretical or practically unattainable does not meet these requirements.
Taking all factors into account, the Federal Administrative Court therefore concludes that the current framework for radio and cable surveillance does not meet the requirements of Articles 13 and 36 of the Federal Constitution and Article 8 of the ECHR. Whilst the intrusion into privacy is, in principle, justifiable, it proves to be disproportionate due to a lack of adequate 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 shortcomings as part of a revision of the Intelligence Service Act. This cautious approach takes account of the importance of intelligence gathering for security policy whilst respecting the legislature’s discretion. At the same time, however, the court sets out a clear condition: should a constitutionally compliant situation not be established within this period, radio and cable surveillance must be discontinued. The judgment thus establishes a binding constitutional framework for the future design of strategic surveillance measures in Switzerland. This transitional period functions as an order for continued application. It is intended to prevent an immediate security gap, but is in tension with fundamental rights in that, during the transitional period, interventions may continue to take place under a regime deemed by the court to be insufficiently safeguarded. For future legislation, this increases the pressure to swiftly establish effective ‘end-to-end safeguards’ covering the entire data lifecycle (collection–selection–analysis–storage–disclosure–deletion).
The ruling thus aligns with the increasingly restrictive European case law on strategic mass surveillance and clarifies the constitutional minimum requirements for state access to data in the digital age.
Practical implications
The Federal Administrative Court’s ruling has significant practical consequences for business, holders of professional secrets and government bodies. Even though the ruling concerns government action, the assessment of government access capabilities may indirectly influence risk assessments relating to cross-border data flows (e.g. in the context of internal data compliance, supplier management or intra-group governance). For companies with international communications, it must therefore be assumed that the existing surveillance regime will be adapted and, in some respects, restructured 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, 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, tiered communication channels) in terms of their need for adaptation and to adjust them where necessary.
For those bound by professional secrecy, the ruling has the effect of strengthening fundamental rights. The Federal Administrative Court has expressly emphasised that sensitive communication relationships – namely journalistic sources and client-solicitor communications – have not hitherto been sufficiently protected. This gives rise to a clear legislative mandate to structure the protection of these areas, which are particularly subject to confidentiality, in a more precise and effective manner in future. For media professionals, this means a strengthening of source protection, which is central to the functioning of investigative journalism. For lawyers, professional secrecy is paramount as a cornerstone of the right to a fair trial. In both areas, more specific legal safeguards are to be expected, such as clearly defined filtering, deletion or exclusion rules within the surveillance process.
There is also considerable pressure for reform on the authorities themselves. The legislature is called upon to establish a surveillance regime that meets the requirements of constitutional and convention law. Future legislation will need to contain more precise guidelines on the selection and use of search terms (‘selectors’) to ensure targeted and proportionate data collection. Likewise, an institutionally and functionally effective, independent supervisory body will be indispensable; one that does not merely exist in name but actually enables substantive oversight. Furthermore, effective avenues of redress must be guaranteed for potentially affected individuals, 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 secure trust in the constitutional design of state security instruments.
Conclusion and Outlook
The A-6444/2020 judgment marks a turning point in Swiss surveillance law. The Federal Administrative Court confirms that strategic mass surveillance may, in principle, be permissible – but only subject to strict constitutional safeguards. The current framework does not meet these requirements.
The legislature now has five years to establish 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.
For companies, legal advisers and compliance officers, this development is of great strategic relevance. The debate on mass surveillance is therefore not over – rather, it is entering a decisive phase.