DEFEAT FOR OPPONENTS OF POLITICAL POLICING: NEW LAW ON STATE PROTECTION IN FORCE
A unique referendum vote on no less than the abolition of Switzerland's state protection police ended in a bitter defeat for the opponents of political policing. A new law on state protection entered into force in July.
In 1989, it became known that some 900,000 people out of a total population of then 6.5 million had been registered by state protection on the sole ground of their political opinion. Almost ten years later, the Swiss seem to have forgotten the lessons of the "snooping scandal".
In a referendum vote of 7 June, the Swiss electorate rejected by a crushing 75 percent majority a proposal, probably unique in a western country, for the simple abolition of the "political police", i.e. Switzerland's state protection services. The proposal was submitted to an obligatory referendum vote in accordance with the Swiss Constitution upon request of more than 100,000 citizens, supported by, among others, the Social Democratic Party, the Greens and the labour unions.
The crushing defeat meant the end, at least for the time being, of the country's largest movement of opposition since the end of World War II.
In 1989 it was revealed that during the Cold War period, Bupo (Bundespolizei), the Swiss Federal Police, assisted by the police of the Cantons (member states of the Swiss Confederation) had kept under surveillance and registered some 900,000 persons on the sole ground of their political opinions. Foreign residents and people suspected of communist or leftist sympathies were the prime victims of this extraordinary state-sponsored snooping activity. But it gradually came out that even leading figures of the Swiss establishment, such as editors of large circulation newspapers, had files at Bupo. Significantly, Bupo was created in 1889 as a direct result of pressure from abroad. At that time, the Chancellor of the German Reich, Bismarck, angered by the "subversive" democratic activities of German refugees on Swiss soil, demanded that the Swiss government clamp down on the German exiles. The demand was accompanied by barely veiled military threats, and the Swiss government reacted by setting up the political police.
A hundred years later, the discovery of Bupo's unlawful snooping activities drew public outrage. People's anger was further fuelled when the government, bowing to massive public pressure, decided to grant individual applicants access to their files. Eventually, more than 350,000 people applied for and received copies of their secret files, and many suddenly understood why their professional careers had faltered for apparently inexplicable reasons in the 60s, 70s, and 80s.
One women found out she was fired from her job as a bank clerk in the 1970s, because she married a man considered "politically suspect" by Bupo. Two members of the Federal parliament discovered they were registered in 1989 merely because they had signed a public and perfectly lawful appeal against genetic technology. State protection regarded them as part of a political environment inclined to terrorism, because the same year, a number of bomb attacks were carried out by unknown perpetrators against genetic research facilities... in Germany.
In March 1990, 35,000 people (an extraordinary number for Switzerland) demonstrated in Berne for the abolition of the political police. In the autumn of 1991, a Committee "No State Snooping in Switzerland" (Schweiz ohne Schnüffelstaat) gathered more than the necessary 80,000 signatures under their "Initiative" for the abolition of political policing.
The instrument of Initiative is unique to Switzerland. It allows for changes to the Constitution to be forced, based on a popular vote, even against the majority of Parliament.
The wording of the Initiative "No State Snooping in Switzerland" was unequivocal:
The political police are abolished.
In exercising political and ideological rights, nobody shall be subjected to surveillance.
State protection in shambles
The "snooping scandal" resulted in an almost deadly blow to Swiss state protection activities. In view of overwhelming public criticism and distrust, Bupo could not even consider continuing its surveillance activities as usual. Moreover, the disclosure of thousands of secret personal files, some of which contained information provided by "friendly" foreign secret services, temporarily led to Swiss services being excluded from international intelligence cooperation.
The "snooping scandal" also highlighted the amateurism and the technological backwardness of Swiss state protection activities. 97 per cent of the information gathered by Bupo was considered useless after closer scrutiny. Bupo did not have a computerised database. Instead, information was stored on type-written or hand-written filing cards. Thus, in the wake of the snooping scandal, Bupo had two options: to close down or to thoroughly reorganise and modernise.
Sitting out public anger
The government quickly made up their mind. As early as November 1989, a parliamentary commission inquiring into the snooping scandal, while strongly denouncing prevailing state protection practices, noted that "the State needs preventive state protection" and stressed that, in this context, registration of innocent third persons was "unavoidable".
However, in the aftermath of the scandal, the advocates of continued political policing were acting under the Damocles sword of the Initiative "No State Snooping in Switzerland". Until the early 90s, opinion polls showed a strong majority in support of the abolition of state protection. Aware of this, the supporters of political policing, led by the Federal Minister of Justice and Police, Arnold Koller, opted for a strategy of "sitting out" reigning popular discontent. While the Government could not prevent a vote on the Initiative, it could designate the date of the vote. As a result, the referendum vote on the Initiative was simply postponed on the grounds that the government needed time to come up with a counter-proposal to the Initiative..
The reorganisation of state protection activities
In the meantime, the government did not remain inactive. Bupo was already in 1990 equipped with ISIS, an automated information system for storing and processing data on persons related to external or internal threats to State security. ISIS and new rules on state protection were put on a semi-legal basis in 1992, by the way of government ordinances. In the aftermath of the snooping scandal, the political establishment was well aware that any attempt to introduce legislation to this effect would be stopped by a referendum vote.
Bupo was soon at work again and quickly regained the confidence of its foreign partners. During the Gulf War in 1991, Bupo was literally flooded with intelligence from foreign services, and at home, they was assiduously gathering information on people suspected of sympathies with Iraq. Just recently it came to light that 150 municipalities in eastern Switzerland provided Bupo with the personal data of all their Iraqi residents, stored by a private computer firm hired by the municipalities for their data management.
The reorganisation of Bupo was accompanied by an impressive public relations campaign by the federal government aimed at changing negative public perception of state protection. With the fall of the Berlin Wall, the old justification of political policing, that is, the prevention of subversive communist activities against the State, no longer held up. As in other countries, "international organised crime", terrorism and "violent extremism" became the new terms used by the government to justify the need for continued intelligence gathering on persons not suspected of any offence. Consequently, in what critics decried as an exercise of perception management, government officials banished the commonly used term "political police" from their vocabulary and replaced it by "preventive policing".
In 1994, the Federal Ministry of Police and Justice ran its highly publicised campaign "1994 -Year of Internal Security". The message was that, without state protection, Switzerland risked becoming a safe haven for political extremists, terrorists, drug traffickers and criminal organisations. Although there is no indication of any serious rise in crime in Switzerland, the campaign succeeded in fuelling subjective sentiments of insecurity among the population and contributed to a growing acceptance of state protection activities and police in general by the people.
The same year, a new provision was included in the Federal Penal Code, making "membership in a criminal organisation" a punishable offence.
Computerising the police
Not only Bupo but also Federal Police services as a whole were modernised and strengthened.
In the 90s, new automated databases in the field of policing were set up at a quick pace. Among these systems are:
RIPOL, a criminal search system;
DOSIS, a database on drug related crime;
ISOK, on organised crime;
ISIS, the state protection computer;
AUPER, a database on asylum seekers, and
ZAR, the central database on foreigners.
As opposed to RIPOL, the common feature of DOSIS, ISOK and ISIS is their focus on pro-active, "preventive" intelligence gathering. "Suspects" can be registered without their being subject to an official police investigation. The three systems also contain very sensitive and unverified intelligence concerning non-suspects such as contacts of persons under surveillance.
Towards a federal central police authority
There are two separate police structures on the federal level: Bupo and the Federal Office of Police, BAP (Bundesamt für Polizeiwesen).
Unlike Britain and Germany, where the secret services and the police are distinct bodies, Bupo is both the federal judicial police unit in charge of investigations concerning certain offences under the remit of the Federal Prosecutor (trafficking in arms, illegal technology transfer and other serious crimes considered a threat to State security) and the secret service tasked with the protection of internal and external state security. Bupo is attached to the Office of the Federal Prosecutor.
As for BAP, the Federal Office of Police, before 1990 it was no more than a subsidiary coordination structure without operational powers, serving and assisting the judicial police of the Cantons. At present, a thorough reorganisation and reinforcement of BAP is underway. The trend is towards making BAP a central police authority, comparable to the German BKA (German Federal Office of Criminal Investigation).
BAP comprises seven separate central criminal investigation departments: organised crime, drug trafficking, counterfeiting, migrant trafficking, pornography, the national Interpol unit, and an office on money-laundering. Since the mid-90s, the staff of these central departments has grown from just 7 to 93. Recently, the central services have also been linked together more closely through the creation of two inter-service coordination structures:
a 'crime analysis' unit is to function as an information hub for the various specialised criminal investigation services and is tasked with drawing up crime analyses for prosecution authorities;
an 'operations' unit is to coordinate inter-cantonal and international investigations concerning drug trafficking and counterfeiting.
These recent developments suggest that Switzerland its currently setting up a powerful central police authority, inspired both by the German BKA and by Europol.
The State Protection Law
The new quality of state protection activities and policing in Switzerland is probably best illustrated by the Federal Law on the Protection of Internal Security (Bundesgesetz zur Wahrung der Inneren Sicherheit). The law, commonly known as the "State Protection Law" (SPL), was approved by Parliament in March 1998. Opponents of political policing launched a referendum campaign against the bill. But times had changed and they failed to gather the necessary 50,000 signatures by a margin of 300. Thus, the law entered into force on 1 July, just weeks after the defeat of the Initiative "No State Snooping in Switzerland".
For the first time, the SPL puts the secret intelligence activities of Bupo on a statutory footing.
In an apparent concession to public concern, the law states that, as a rule, Bupo and the security services of the Confederation and the Cantons are not authorised to gather or process information on political activities and relating to the exercise of freedom of expression and freedom of organisation. This general rule is, however, crucially weakened by an exception clause: the gathering and processing of the above types of information is authorised where there are "reasons to suspect" that organisations, or their members, "use the exercise of their political rights as a pretext for perpetrating or preparing acts of terrorism, illegal intelligence or violent extremism".
The Law fails to define the terms "reasonable suspicion", "terrorism" and "violent extremism". This is why critics claim that the clause amounts to actually authorising continued "preventive" snooping on individuals and groups on political grounds, without any need for Bupo to substantiate its suspicion of a crime.
Interestingly, attempts, supported by the Ständerat, the federal parliament's Upper House, to extend the scope of state protection activities to "organised crime", did not materialise. The idea of giving state protection services a role in fighting organised crime was strongly contested by the judiciary and regular police both on the federal level and in the cantons. The dispute ended in a compromise formula. Under the State Protection Law, Bupo is not tasked with gathering intelligence or carrying out investigations relating to organised crime, but is merely required to forward relevant information it comes across accidentally to the responsible authorities.
Public authorities and private organisations with "public functions" as informers of Bupo
The SPL further establishes an obligation for public authorities, administrations, and data registers to spontaneously inform Bupo, whenever they become aware of "concrete threats" against internal or external security. Bupo has direct access to all information stored in public registers such as ZAR, AUPER, social security and health care registers.
Moreover, the federal government can decree that for a limited period of time, "private organisations with public functions" must send information on security threats to the Federal Police. The law does not specify what is meant by "public functions", but according to the prevailing interpretation the provision is applicable to any private organisation offering aid or assistance of some form to a wider public - e.g. charities and legal aid organisations.
Intelligence gathering
The law authorises state protection services of the Confederation and the Cantons to gather information without the targeted persons being aware of this. It authorises video and audio recordings for the purposes of surveillance of "occurrences" at any place open to the public (from public squares to restaurants). These activities may be carried out without a criminal investigation being ordered and with no requirement of approval by a judge.
State protection services may also monitor the movements and contacts of targeted persons for the purposes of establishing personal profiles. In doing so, they can, for example, contact an employer behind the targeted person's back or accept information provided by "spontaneous" private informers, such as neighbours and colleagues. Finally, surveillance measures may be extended to "contact persons", e.g the family members, friends, colleagues of a targeted person.
Even after the conclusion of a penal procedure, the Federal Police may process certain personal data gathered in connection with the procedure:
data on accused (not necessarily guilty) persons, where there are "clues" ("Anhaltspunkte") suggesting that they can provide information on threats against internal or external security;
data on non-accused persons (e.g. witnesses), where there are "verified clues" ("gesicherte Anhaltspunkte") that they are associated with members of a "terrorist, violent extremist or criminal organisation", irrespective of their being aware of this or not.
This provision has far-reaching implications. The law prohibits the use by Bupo of telephone tapping and video or audio surveillance of private rooms outside a criminal investigation. But Bupo may collect and process sensitive personal data on innocent persons, obtained in the course of a criminal investigation through the use of these surveillance methods.
ISIS: the state protection computer
All these data are stored and processed in the state protection computer, ISIS. According to official figures, already in 1994, around 40,000 persons were registered in ISIS. Since that year, no figures have been disclosed.
There are no effective restrictions as to the types of data stored in the system. Thus, sensitive information on a registered person's race, sexual behaviour, health, and political opinion may be stored, irrespective of whether the person is suspected of an offence or not.
All law enforcement authorities and authorities responsible for state protection on the national and cantonal levels have access to data from ISIS. By way of an ordinance the Federal Government designates other parties inside the country "fulfilling public functions" to which personal data from ISIS may be sent "in specific cases".
In specific cases, the Federal Police may also send ISIS data to security organs of foreign countries, if this is considered "imperative in order to protect important security interests" of Switzerland or the receiving state.
No right of access for persons to their own files
In the aftermath of the snooping scandal, individuals were granted a right of access (with certain restrictions) to their own files stored by state protection police. The State Protection Law abolishes this right. Under the new law, a person may merely request the federal data protection commissioner to check whether his/her personal data are being processed in accordance with the law. All applicants will then receive a form letter from the data protection commissioner, confirming either that no data are being processed unlawfully or that the data protection commissioner has sent a "recommendation" to the Federal Police concerning the correction of errors. There is no right of appeal against these stereotype answers. Moreover it remains the legislators’ secret how the data protection will be able to correct erroneous data concerning an applicant, when the applicant himself is denied access to his file.
The law gives only one exception to the rule of denied access. In "exceptional cases", the data protection commissioner may inform an applicant in an "appropriate way" on contents of his or her file, if the applicant would otherwise suffer "considerable, irreparable damage" and provided a disclosure does not entail a "threat to internal or external security". Again, the problem lies with the fact that an applicant will not be able to substantiate any damage ensuing from information stored in ISIS, without first having seen the file.
The abolition of persons' right of access has been sharply criticised by the Special Commissioner for state protection files, René Bacher: "For privacy to be protected not only theoretically but also in practice, every citizen must have the possibility to check, through the right to information, whether what has been stored on him is actually correct or not - because any registration [in ISIS] is undoubtedly negative. But what police have found about a person is not automatically true. Sources of information are often unreliable, mistakes and errors unavoidable".
For his part, a senior official of the Federal Ministry of Police and Justice justified the abolition of persons' right of access to their own data as follows: "This solution was found because experience from abroad shows that, despite a theoretical right of access, prevailing security requirements lead to access being denied in most cases".
Defective parliamentary scrutiny
A parliamentary committee of six had been mandated with the monitoring of state protection activities in the early 90s, when ISIS went into operation. However, Heiner Busch, a leading German expert on policing, now living in Switzerland, is doubtful about the effectiveness of parliamentary control. He points to the fact that the members of the Committee are bound by secrecy and are largely dependent on information provided to them by state protection officials. The Committee presents a report only every four years. According to Busch, the first report did not even contain statistical information that would have provided some insight into the extent of state protection activities.
Commenting on individuals' right of access to their own data, Busch emphasises that persons registered in ISIS without being suspected of an offence actually have fewer rights than persons under criminal investigation. Indeed, the latter have a right to see all incriminating information concerning them used in a criminal procedure.
"Organised crime" a legitimation of political policing?
Advocates of state protection have praised the new law for putting an end to unlawful political snooping on innocent citizens. In the opinion of critics, however, the law has given political policing an appearance of legitimacy. This has been achieved by formally establishing a link between political policing and the prevention of threats against public security such as terrorism, "violent extremism" and "organised crime". Opponents of state protection argue that it will be easy for Bupo and, increasingly, regular police services to continue to register innocent people merely on the grounds of their political dissidence by construing their alleged "affiliation" with an "environment" regarded as a security threat. The case of the two members of parliament who were registered because they signed the appeal against genetic technology is an illustration of how political policing is likely to be justified in the future.
Sources: Fischenfritz no. 28 (March 97) and 32 (March 98); Bundesgesetz zur Wahrung der Inneren Sicherheit (Federal State Protection Law), adopted by Parliament in March 1998; WochenZeitung, No.20, 14.5.98; Neue Zücher Zeitung, 21.11.97, 8.4.98, 7.5.98, 23/24.5.98; interviews with Heiner Busch, Berne, 17.8. and 19.8.98; on state protection and policing in Switzerland: see also: - FECL No.6: ["THE REORGANISATION OF POLITICAL POLICE - HISTORY OF A SCANDAL"](/artikel/0601/), ["THE GOVERNMENT'S EFFORTS TO REORGANIZE INTERNAL SECURITY ACTIVITIES"](/artikel/0602/) and ["THE DRAFT BILL ON STATE PROTECTION (STAATSSCHUTZ)"](/artikel/0603/); - [No.9: "New start for political policing without legal base"](/artikel/0907/); - [No.10: "No end to unbridled telephone tapping"](/artikel/1005/); - [No.13: "MORE SNOOPING WITH THE NEW ANTI-DRUG DATABASE 'DOSIS'?"](/artikel/1309/); - [No.23: "INTRODUCTION OF A MACHINE-READABLE ID-CARD"](/artikel/2304/); - [No.26: "Commissioner for data protection in open con-flict with government"](/artikel/2602/); - [No.35: "Supporters of increased policing on the advance"](/artikel/3510/); - [No.36: "Data Protection Commissioner warns against pro-active control"](/artikel/3609/).