Does the U.S. Patriot Act apply in Switzerland? The title of the Patriot Act is actually a ten-letter acronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. The act allows federal officers, who acquire information through electronic surveillance or physical searches, to consult with federal law enforcement officers, to coordinate efforts to investigate or to protect against potential or actual attacks, sabotage or international terrorism or clandestine intelligence activities by an intelligence service or network of a foreign country. for an order requiring sensitive data. An FBI officer may have direct access to the data if he sends a National Security Letter ("NSL") to the concerned person or legal entity. U.S. investigators may obtain a so-called "gag order," which prevents providers from informing any concerned person that his/her information is required by U.S. investigators. In Switzerland, no Patriot Act or PRISM program private data is very limited both by law and in fact. In general, any unauthorized obtaining of data or accessing to a data processing system is a violation of the Swiss Criminal Code. on Swiss territory are illegal a prior request for judicial aid. The Patriot Act may not be applied on Swiss territory. Thus, neither foreign authorities nor civil parties have any direct access to personal or business data located on Swiss territory. In general, without a Swiss state order, no access is permitted. fortress is unconquerable. Different ways of cooperation between Switzerland and foreign countries are permitted, such as in criminal matters there is police, assistance. judicial aid to access data stored within Switzerland's borders. Swiss authorities grant international mutual assistance only if a formal request is substantiated and specified. Foreign authorities must explain in detail who is concerned, what is the subject of the proceeding, and, in particular, why the requested information is sought and relevant to the foreign proceedings. The Swiss authorities are restrictive; no foreign fishing expeditions are accepted. In practice, judicial aid is difficult for practical reasons. According to the vice-director of the Federal Office of Justice, Ms. Susanne Kuster, it is almost impossible to find out where exactly the data is stored within a data center without the cooperation of the concerned owner of the data. Therefore, in Switzer- land, such taking of evidence is done only in rare cases. applies also to U.S. affiliates settled in Switzerland. might get into difficult situations because they must comply not only with the local Swiss law but also with (extraterritorial) U.S. law. If a U.S. affiliate, based in Switzerland, receives a National Security Letter, it would be against Swiss law to follow a U.S. request without approval from the competent Swiss authority. Recommendation worried clients, in particular related to outsourcing and cloud services. Basically, our advice is the following: in data centers physically located in Switzerland. leave Switzerland. U.S. affiliate. center provider. technical know-how of your company or health data, negotiate special clauses with your data center provider, such as information duties of the data center for any access to the servers, anony- mization of servers, physical access to servers only by the customer, etc. are being massively increased. Outsourcing, email, and cloud services are successfully marketed with a Swiss approach. New techniques, called homomorphic cryptography, are evolving, and enable the processing to occur while the data remains encrypted. Data Centre Risk Index 2012; Informing global invest- ment decisions, p. 7. 19. November 2012, Nummer 22, p. 3 et seq. Broadband Commission, The State of Bradband 2012, September 2012, Annex 3). Cushman&Wakefield; Data Centre Risk Index 2012; Informing global investment decisions, p. 7. 19. November 2012, Nummer 22, p. 3 et seq. 9 So far, there is no PRISM or similar program known in 12 See section III of this article for more details on Swiss covers measures that can be undertaken without the use of compulsory procedures. The communications between police authorities generally happens via their national In- terpol bureaus. Especially the Schengen Agreement has affected the rules for police cooperation within the EU; Guidelines of the Federal Office of Justice, International Mutual Assistance in Criminal Matters, 9th edition 2009, p. 6. countries concerned, Guidelines of the Federal Office of Justice, International Mutual Assistance in Criminal Matters, 9th edition 2009, p. 6. |