Motion Bônhote (06.3793): Legal basis for video surveillance
Rejected (21.06.2007)
Submitted text
The Federal Council is instructed to develop a legal basis for video surveillance.
The legislation is to regulate in particular: the actions permitted under the principle of proportionality, the information of the public, the duration of the retention of records, their consultation, processing and transmission. In doing so, it grants the cantons the necessary room for maneuver.
Justification
Video surveillance is spreading rapidly. Admittedly, Switzerland has not yet reached the same level of control density as in Great Britain, where a pedestrian is filmed at least 300 times a day in London, for example. But systematic surveillance of public space is on the rise, and it is creating legal problems that are being exacerbated by technological developments. Cameras that recorded only poor black-and-white images are a thing of the past. Today, high-resolution recordings are possible through miniature cameras. Digital technology makes it possible to automatically process, analyze, compare, store and transmit large amounts of information. The danger that civil liberties will be infringed upon has grown considerably as a result. The constitutional principle of legality requires that such strong interventions be based on a legal foundation. In its ruling of December 14, 2006, on the challenge of a municipal regulation by a citizen of St. Gallen, the Federal Court criticized the lack of such a legal basis.
The application of the principle of proportionality requires that the preventive effect of video surveillance is reviewed and that criteria are defined according to which its use is justified. The handling of the recorded images must also be regulated. The duration of their retention varies widely in current and planned cantonal legislation and municipal ordinances: They range from 100 days in the police regulations of the city of St. Gallen to 24 hours in the draft law of the Vaudois State Council. The right to transmit images or have them digitally analyzed must also be regulated, which makes it possible, for example, to reconstruct the paths of people. However, the right to be informed about the surveillance or to view recordings of oneself must also be regulated. Finally, the question of surveillance of a visible professional activity in public space should also be examined.
In view of the mobility of the population, it does not seem advisable to allow cantonal and communal regulations to run riot that lack a basis in federal law.
Statement of the Federal Council
Due to the general constitutional responsibility of the cantons for public order and security, the majority of official video surveillance is based on cantonal and municipal (police) law. Only in a few cases is video surveillance currently based on federal law (at railroad stations and on SBB trains based on the Video Surveillance Ordinance, at the national border based on the Ordinance on Area Surveillance with Video Equipment and the new Customs Act, and at airports based on the Federal Act on Safeguarding Internal Security). Surveillance by private individuals is governed by the Federal Data Protection Act.
The situation for video surveillance in publicly accessible areas thus proves to be legally complex, as not only private and public responsibilities overlap, but also municipal, cantonal and federal competencies.
Due to the complex legal situation described above, the Federal Council decided on January 31, 2007, that a precise clarification of the federal government’s constitutional responsibilities is first necessary. These clarifications are to be carried out jointly by the FDJP, DETEC, the cantons and other competent bodies within one year.
The results of these clarifications must be awaited for the possible creation of a comprehensive federal legal basis.