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.