Interpellation Schwaab (15.3045): Does the Tisa agreement impose second-class privacy protection on us?
Not yet treated; Discussion moved (19.06.2015)
I put the following questions to the Federal Council:
1. can he confirm that the proposals mentioned in the explanatory memorandum were under discussion?
2. could these proposals possibly be included in the final agreement?
3. what would be the impact of such provisions on the protection of privacy in Switzerland?
4. could such provisions affect the application and strengthening of Swiss legislation on data protection, in particular Article 6 DPA and Article 13 of the Federal Constitution?
5. could such provisions affect the application of article 47 BankG?
6. does the Federal Council support these proposals? If so, why?
7. might such uncertainty in data protection not affect the further development of data retention in Switzerland?
According to leaked documents related to the negotiation of the Tisa agreement, the following provisions of the agreement (and its annexes) are being negotiated at the request of the United States:
Article X.2: Local Content
l. Subject to any conditions, limitations and qualifications set out in its Schedule, no Party may, in connection with the supply of a service by a service supplier, impose or enforce any requirement; enforce any commitment or undertaking; or, in connection with the supply of a service through commercial presence, condition the receipt or continued receipt of an advantage on compliance with any requirement:
(a) to purchase, use or accord a preference to:
(iii) computing facilities located in its territory or computer processing or storage services supplied from within its territory;
Article X.4: Movement of Information
No Party may prevent a service supplier of another Party from transferring, accessing, processing or storing information, including personal information, within or outside the Party’s territory, where such activity is carried out in connection with the conduct of the service supplier’s business.
These provisions could amount to prohibiting Tisa contracting states from preventing the cross-border disclosure of personal data (even to a country with inadequate standards). Contracting states could also no longer require data to be kept in Switzerland. The Deputy Federal Data Protection and Information Commissioner expresses concern (“Le Matin” of January 12, 2015).
Statement of the Federal Council
The negotiations on the Trade in Services Agreement (Tisa) include various proposals on a wide range of topics, including ICT (information and communication technologies). As a matter of principle, the Federal Council does not comment on text material brought to public attention by unknown parties and its authenticity. Irrespective of their origin and topicality, the Federal Council would point out that in the Tisa process – as in other similar negotiations – the text proposals submitted are subject to the negotiating dynamics and a lively process of amendment and rejection by a group of over 20 negotiating parties. Therefore, at the current stage of the Tisa negotiations, any forecast of possible negotiation results and their effects would be speculative.
4 – 6 The area of ICT is closely linked to the issues of data protection and privacy. The Swiss negotiating delegation therefore examines all proposals, particularly in the area of ICT, with these issues in mind and supports exceptions where necessary or enters reservations or rejects proposals in order to avoid incompatibilities of Tisa with the Swiss legal system (including the aforementioned provisions of the Federal Constitution, the DPA, and the BankA). Tisa does not prevent Switzerland from maintaining its provisions on privacy and data protection.
7. the Federal Council will not accept any negotiation outcome that would impair the further development of data retention in Switzerland and necessitate a corresponding amendment of the legal provisions on data protection and privacy. Switzerland’s legal data and privacy protection contributes to a favorable environment for data retention services, among others. In view of the outcome of the negotiations, the Federal Council aims to strengthen the framework conditions for current and potential future business areas of the Swiss economy and its jobs, including in the ICT sector.