Within the context of interdepartmental consultations we submitted an opinion on the draft bill revising the Federal law instituting measures for the maintenance of internal security (law on measures against propaganda inciting violence and against violence during sports events). One of the aims of this revision is to introduce a so-called “hooligan database”. Although some of our recommendations have been accepted in the draft bill, differences of opinion still remain and some questions remain unanswered. Furthermore, following our opinion and in response to a request, we still maintain that the use of a biometric system for facial recognition is not covered by the present draft bill.
In 2002, we commented on the first draft bill modifying the law on internal security (see our 10th Annual Report 2002/2003, section 3.1.2). The draft provided for the introduction of an information system to collect data on individuals who committed acts of violence during sports events (the so-called “hooligan database”).
Some of our comments were incorporated in the daft bill, however, many questions have not been addressed. For example, we believe that the government’s position paper (this is called a message in Swiss parliamentary usage) should define more clearly what exactly constitutes “an act of violence during a sports event”. The reason is that such cases should be distinguished from less serious cases involving “spontaneous violence” to the extent that the latter fall within the sphere of responsibility of the cantonal police forces. The draft law also says that once a measure has been decided (ban on entering a stadium or travel restrictions), it may be entered into the database if this is considered necessary for the protection of individuals or sports events and if credible arguments can be made to justify such an action. We believe that the wording is too imprecise and should be deleted. All the more so, as the draft bill includes a provision according to which sentences handed down or confirmed by the judicial authorities, as well reports made to the competent authorities, may be entered into the information system. Neither the draft bill nor the position paper define exactly the role and responsibilities of the Central Agency for Hooliganism which is attached to the Zurich municipal police. How will responsibilities be divided between it and the Federal Office of Police? Furthermore, the question as to what the organisers may do in their capacity as private individuals on the one hand and as the representatives of the public authorities on the other remains unanswered.
Immediately after the interdepartmental consultations, we were asked whether the use of a biometric facial recognition system was covered by the draft law in its current version. Our position remains that the use of a biometric facial recognition system must be specifically covered in a formal law (e.g. in the present draft law). The draft in its current form or a simple regulation issued by decree would not suffice. In addition, video surveillance may not under any circumstances be equated with biometric facial recognition, as the latter encroaches far more on the personality rights of the individual concerned. Before creating a formal legal basis, it is important to verify compliance with general data protection principles (in particular the principle of purpose limitation and proportionality). If facial recognition is also intended to be used by private persons (e.g. the organisers of sports events or third parties), it is essential that the processing of such data respects general data protection principles as well as requires a convincing reason for carrying out the data processing (consent, overriding public or private interest, legal basis).
[July 2006]