The second consultation round on the draft Intelligence Service Act has now been completed and, from a data protection perspective, a number of improvements have been introduced. However, there are some elements of the law that are still problematic, such as instruments for information acquisition, or the exclusion of the Federal Intelligence Service from the scope of the Freedom of Information Act.
The draft Intelligence Service Act was the subject of two inter-ministerial consultations. The draft bill that was submitted in April 2012 still contained several extremely problematic elements from a data protection perspective. The legal provisions concerning the various databases belonging to the Federal Intelligence Service (FIS) were insufficient. The indirect right to information granted to individuals concerned was subject to even greater constraints than under the rules that were in force before 16 July 2012. The revised draft, that was the subject of the consultation process in October 2012, did introduce a few notable improvements in terms of data protection. For example, measures to acquire information requiring consent are now restricted to a limited number of cases, and must be approved by the Federal Administrative Court. The provisions concerning the databases are far more detailed than those proposed in the first round of consultations. Regarding the right to information, the new draft now includes a regulation which is comparable with the Federal Police Information Systems Act.
There are still various points in the draft that are unsatisfactory. In our view, the FIS should not have greater investigative powers than those granted to the law enforcement services. The draft will therefore have to be adapted to the norms that will be adopted as part of the overhaul of the Federal Mail and Telecommunications Monitoring Act. A further point concerns the processing in Switzerland of personal data that has been obtained illegally abroad, and whether this is compatible with Swiss data protection legislation. The planned online access to the data collections held by the federal authorities has not been sufficiently substantiated, if at all. Finally, we are against the proposal to exclude the FIS from the scope of the Freedom of Information Act (cf. section 2.5.4 of the present Report on activities, in German and French).
The draft Federal Intelligence Act is now going out into an external consultation process in which various stakeholders will be asked to provide input. We expect the Federal Council to issue a message on the subject to the two chambers of Parliament before the end of 2013.