Court stops mass surveillance: FIS violates fundamental rights

Florian Bodoky

3-12-2025

Translation: machine translated

The Federal Administrative Court stops the FIS's cable reconnaissance and demands a fundamental revision of the surveillance system by the legislator.

On 2 December 2025, the Federal Administrative Court (FAC) ruled: The controversial «radio and cable reconnaissance» of the Federal Intelligence Service (FIS) is not compatible with the Swiss Federal Constitution in its current form. It also violates the European Convention on Human Rights (ECHR).

What is «radio and cable reconnaissance»?

In simple terms, the FIS uses so-called cable reconnaissance to monitor cross-border communication: it can intercept data that travels via international fibre optic cables - for example internet and email traffic - and search it for specific keywords. This practice, known as the Intelligence Services Act, was voted on in 2016 and was adopted.

This means that the surveillance potentially affects all people in Switzerland whose communications were sent via foreign servers or internet lines - which is the case with many email services, even if the sender and recipient live in Switzerland.

Why is the court dealing with this now?

As early as 2017, the Digitale Gesellschaft association and several private individuals filed a complaint against the measure. They demanded that the cable reconnaissance be discontinued and accused the FIS of violating their fundamental rights. They criticised the fact that the law was too vaguely worded. It granted the FIS too far-reaching surveillance powers and did not protect the rights of individuals enough.
In 2020, the Swiss Federal Supreme Court upheld this complaint in principle and referred the case back to the FAC. The FAC has now completed its review and issued its judgement: radio and cable surveillance in its current form violates fundamental rights - in particular the protection of privacy and the right to confidential communication.

What specifically does the court criticise?

The FAC found several serious shortcomings in the surveillance system. As a result of these deficits, it was no longer possible to speak of legally permissible surveillance. The current system is therefore unconstitutional.

• There is no guarantee that the FIS only processes «significant and correct data». There is a risk that innocent bystanders are affected.
• The law does not contain sufficient protection mechanisms for particularly sensitive communications - for example between journalists and their sources or between lawyers and clients.
• The surveillance is not subject to sufficiently effective external control: there is no independent, continuous supervision as would be required for mass surveillance according to the case law of the European Court of Human Rights (ECtHR).
• Affected persons do not yet have an effective legal remedy to subsequently check whether their communications were affected.

What happens now?

The FAC instructs the legislator - i.e. Parliament - to rectify the known shortcomings. The FIS is to cease radio and cable reconnaissance if no system compatible with the constitution and the ECHR is created within a period of five years. With this decision, the FAC clearly declares that the current form of mass surveillance is not legally tenable. The protection of privacy and fundamental rights, in particular confidential communication, thus takes precedence over unprovoked surveillance.

Florian Bodoky

Editor

Florian.Bodoky@digitecgalaxus.ch

I've been tinkering with digital networks ever since I found out how to activate both telephone channels on the ISDN card for greater bandwidth. As for the analogue variety, I've been doing that since I learned to talk. Though Winterthur is my adoptive home city, my heart still bleeds red and blue. more

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