September 11 2001 was the key theme of my foreword last year. The focus of my thoughts was the question of how a free and democratic state governed by the rule of law can meet this challenge without compromising the basic constitutional rights.
Where do we stand one year later? Unfortunately, the hope that the world would react to the new dangers with the required circumspection has yet to be confirmed. It may be true that at a national level there has been no indication of a disproportionate reaction so far with regard to the protection of personal privacy. The pressure comes from outside: in the battle against the "axis of evil", the Bush Administration is pursuing hegemony at all levels. Increasingly national legislation is being undermined as the United States tries to make the rest of the world subject to its legal system. A recent example came on 5 March 2003, when the United States requested that all airlines should hand over personal details of their passengers, from their religion and dietary habits to their credit card numbers. This is not only shocking because of the sensitive nature of the data requested but more so because of the way in which this desire for data is to be enforced at an international level. The US authorities are demanding in a law that the airlines provide them in advance with the details of all passengers that are planning to travel. In the event of non-compliance, penalties are threatened that may even go as far as the withdrawal of landing rights. To date, no agreement has been entered into with the Swiss authorities in relation to this. In the absence of such an agreement, the airline Swiss will be compelled in certain circumstances to pass on data in violation of national law, as our legislation requires that data may be passed on to another country only if that country has comparable data protection legislation. This is not the case with the USA, with the result that this disclosure of data would in principle only be permitted under our law if an agreement were entered into at the same time between the USA and Switzerland that laid down protective provisions in relation to such data that were comparable with our legislation.
The American approach just described is not an isolated case. Increasingly we will have to come to terms with the fact that the USA, under the guise of combating terrorism, wishes to try to undermine the sovereignty of the legislation of other countries through unilateral dictates and without negotiation.
The fact that this attempt to exert influence has to be taken extremely seriously and also represents an immediate danger to our liberal order becomes clear when we examine how the Bush-Administration is combating terrorism in its own country: with the so-called Patriot Act, the USA goes a long way down the road to a repressive order that no longer pays much regard to the protection of personal privacy. This Act came into force shortly after September 11 2001 with a view to enabling the early detection of terrorist activities. The Act permits the authorities, to cite a pertinent example, to keep surveillance on the users of a library even where there is not the slightest hint that any criminal activity is going on. It allows FBI agents, without informing those affected, to demand the handover of any documents, such as books, papers, newspapers or hard disks from computers. Telephone and Internet surveillance has been made easier. Again without any grounds for suspicion, the FBI can investigate people. The Bush government wants to tighten this Act, even to the extent of making it possible to detain US citizens in secret. Through "Total Information Awareness", the Pentagon further intends to store medical, financial and fiscal information and other records relating to citizens in a database. American civil liberties lawyers are warning of a dangerous development in the USA. The Director of the American Civil Liberties Union, Barry Steinhardt, recently stated in an interview: "A combination of lightning fast technical innovations and the erosion of privacy threatens to transform Big Brother from an oft-cited but remote threat into a very real part of American life." The report by the Union published in January 2003 was entitled: "Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society."
It goes without saying that measures that serve the war against terrorism should be supported by Switzerland. But limits must also be imposed, as a point has now been reached where the war against terrorism is not only in conflict with data protection principles, but is slowly becoming a threat to the rule of law in our country. The fear is that the USA will seek to enforce its surveillance mentality on us through direct or indirect pressure.
In view of this, we have no alternative but to reach a sobering conclusion on the 10th anniversary of our Data Protection Act: it is certainly pleasing that thanks to this Act, awareness of and sensitivity to the enormous potential risks that technological development poses to the personal rights of the citizen has, at a national level, increased. What is the point, however, if at the end of the day these achievements are insidiously set aside by a world power that is striving for dominance and that in relation to the protection of data and privacy is no further advanced than a country of the developing world?
This conclusion must not however lead to the assumption that we did not have any home-grown data protection problems to solve or that developments that pose a risk to personal privacy originate only outside Switzerland. To take that view would be to lull ourselves into a false sense of security. Irrespective of American pressure, there is a widespread and increasing trend here in Switzerland to install a video cameras in every corner in the hope that this will bring about greater security. Although it cannot be disputed that such technology very probably provides a useful service in certain circumstances, it has to be said that it is often unnecessary, inappropriate and disproportionate to requirements and occasionally even leads people to believe that a place is safer than it truly is: a multi-storey car park is not safer for women simply because cameras have been mounted. It is simple to avoid being identified by covering your face. It is only when the location is patrolled and monitored by human beings that it becomes safer. Location based services (use of mobile telephones by marketing companies for the purpose of advertising) and pervasive computing (small, normally invisible transmitters that can be installed anywhere, even in your clothing or in your food, in order to send data) are phenomena that in the first place interest advertising and marketing people, but whose potential to infringe personal privacy is immense. Or, as the German professor of law, Marie-Theres Tinnenfeld commented at the beginning of the year: "Today there is a real fear that unlimited surveillance by the state and the unrestricted pursuit of data by businesses could destroy the personal privacy that people have."
Hanspeter Thür
[July 2003]