Submitted text
The Federal Council writes in its answer to a question by Maja Riniker (21.7896) that the legal foundations are in place for Facial recognition in criminal proceedings and to be used in investigations. At the same time, he also writes that there is a need for special legislation for facial recognition, which enables unique identification of the person, due to the Data Protection Act. In this context, I ask to answer the following questions:
1. where in the Code of Criminal Procedure are the legal foundations for the automated use of facial recognition technology in criminal proceedings, i.e. in investigations, enshrined? Or does the reference to the legal foundations refer to other laws?
2) In the view of the Federal Council, are the legal foundations sufficiently defined to enable the cantonal police forces to perform this type of analysis of biometric data? Which areas of application are covered by the current law?
3 Does the reference to the special legislation required by the Data Protection Act not contradict the statement that the legal basis for use in criminal proceedings and investigations is given? Wouldn’t an explicit legal basis also be required in criminal procedure law?
4. are such special legislation planned for further use of facial recognition? If so, which ones and for which use cases?
Statement of the Federal Council of 16.11.22
As stated in the Federal Council’s response to a question by Maja Riniker (21.7896), facial recognition is a processing of personal data that requires special protection. In principle, personal data requiring special protection may only be processed if a law in the formal sense expressly provides for this. In criminal proceedings, this includes in particular Art. 260 and following of the Code of Criminal Procedure (StPO; SR 312.0) for the collection of identification service data, Art. 354 para. 1 of the Swiss Criminal Code (StGB; SR 311.0) for their storage and Art. 14 para. 2 of the Federal Law on Police Information Systems (BPI; SR 361) with regard to the linking between data records as relevant legal bases. However, these norms do not provide a legal basis for the use of facial recognition without suspicion.
According to Art. 2 of the Ordinance on the Processing of Biometric Identification Service Data (so-called ED Ordinance; SR 361.3), photographs are defined as biometric identification service data and as such fall into the same category as fingerprints, palm prints and palm edge prints or also signal emissions. Consequently, facial images may be collected under the same conditions and from the same sources as fingerprints, palm prints, and palm edge prints. The subsequent use of the facial images is also based on the same legal requirements as fingerprints, palm prints and palm edge prints. This means that under the current legal basis, no facial recognition may be carried out in real time, i.e. continuously from the live image of a surveillance camera in a public space, for example. What is possible, however, are so-called facial image matches, in which individual images are compared as an “image trace” with facial images that were collected during a recognition service treatment and are available in the automated fingerprint identification system (AFIS). This process, referred to as “facial image matching” to distinguish it from the general term facial recognition, can be performed manually or automatically – quite analogous to the processing of fingerprints, palm prints, and palm edge prints.
It is therefore important not to confuse the terms “facial image matching” and “facial image recognition”.
The use of identification data in criminal proceedings is governed by Art. 260 and following of the Code of Criminal Procedure. Pursuant to Art. 354 para. 1 of the Swiss Criminal Code, the competent department registers and stores identification service data collected by cantonal, federal and foreign authorities in the course of criminal prosecutions or in the performance of other statutory duties and transmitted to it. These data may be compared to identify a wanted or unknown person. This provision forms the legal basis for the AFIS information system and, in particular, the registry, storage and comparison of biometric identification data.
Data comparison may be carried out solely for the purpose of identifying a wanted or unknown person and for evaluating crime scene evidence. The legal term of biometric identification data explicitly includes, as mentioned in the preliminary remark, photographs in addition to dactyloscopic data and traces as well as signalements. This follows first of all from Art. 354 para. 4 StGB in conjunction with Art. 2 let. c of the StGB. Article 2(c) of the ED Ordinance, which lists photographs in the final catalog of biometric identification data to be regulated under this ordinance. The fact that fedpol may process photographs in its information system also follows from Art. 14 para. 2 of the Federal Law on Police Information Systems, which explicitly lists photographs for identification purposes as a category of data (Art. 14 para. 2 BPI). The cantons may provide fedpol with biometric identification service data for comparison pursuant to Art. 354 para. 2 lit. d StGB.
No, there is no contradiction with the current legal situation. As stated above, there are no plans to carry out facial image recognition, but only facial image matching for the identification of wanted or unknown persons and for the evaluation of crime scene evidence. The current (formal and substantive) legal provisions for this are sufficient and correspond to those that also apply to the storage and comparison of fingerprints and palm prints. By contrast, the introduction of facial recognition in a different area or for a different purpose, such as the use of facial recognition without suspicion, would require a special formal legal basis.
4. no, there are no legislative projects planned in this area at the federal level at the present time.