Counter-terrorism: data protectionists criticize draft legislation

The Federal Council wants to give the authorities effective instruments to be able to combat terrorist attacks (cf. also national Action Plan). One element of this is the licensing requirement for the acquisition of substances that can be used to manufacture explosives. The marketing and use of precursors has been regulated in the EU since 2014. It is understandable that the Federal Council is now also following suit with legislation so that Switzerland is not the only country in Europe where these substances are available without restriction. Privatim agrees in principle with the creation of a formal legal basis for regulating private individuals' access to precursors and the associated data processing, write the data protection commissioners. However, various provisions are formulated too openly against the background of the principle of legality and the requirement for certainty. In the view of the Conference of Swiss Data Protection Commissioners, there is a need to catch up here.

No consideration for cantonal threat management

It must already be clear at the formal-legal level how terms are to be understood and how the individual provisions are to be interpreted. With the bill on the Federal Act on Police Measures to Combat Terrorism (PMT), the Federal Council wanted to strengthen police instruments to ensure security outside the area of law enforcement. The proposed measures are in a newly created zone that lies between intelligence and police information gathering, data protection officials said. The Federal Council wants to integrate the new police measures into existing decrees, they said. The Federal Office of Police (Fedpol) should be responsible for enacting the measure, and the cantons for implementing and enforcing it. The PMT proposal takes too little account of the provisions of cantonal threat management, which enable the police to obtain information and exchange information with other authorities outside of criminal proceedings or before criminal proceedings are initiated in the first place. Privatim also criticizes the design of the PMT proposal as an overarching decree. Already today, the competences of Fedpol are scattered in numerous special decrees and the associated data processing is distributed among numerous databases and applications. With the now presented draft, this legally fragmented norm landscape would be further enriched. It is doubtful that the present overarching decree will create the necessary legal certainty and guarantee the legality of data processing by the Fedpol. Privatim recommends that Fedpol's competencies be regulated in a transparent and clear manner in a separate decree instead, according to the data protection press release.