EU court ruling means Switzerland must overhaul flight passenger data law

A Swissport employee checks the passports and boarding passes of the passangers before boarding the airplane at Zurich airport. Keystone

Switzerland needs to revise its Flight Passenger Data Act due to a decision by the Court of Justice (ECJ) of the European Union. The ruling reduces the storage period and puts limits on the use of data, news agency Keystone-SDA reported on Saturday.

Following a complaint by a Belgian human rights organization, the Court ruled that the planned storage and processing of air passenger data goes too far. It stipulated that police may only evaluate the data in the event of a real terrorist threat or if there are concrete indications of a serious crime. Analysis for other purposes, such as preventing illegal entry, is not permitted.

According to the ECJ, the data may only be stored for six months instead of five years. Longer storage is only permissible if it becomes apparent in the six months that the trip was in connection with a serious crime.

According to Switzerland’s Federal Office of Police (Fedpol), the ECJ ruling will have an impact on Swiss legislation and practice.

“We are currently analyzing with our partner authorities in the EU the consequences of the ruling on the already existing PNR systems and on the draft law,” Fedpol said in a statement cited by Keystone-SDA. PNR stands for Passenger Name Record.

Law under consultation

A law proposal submitted by the Federal Department of Justice and Police (FDJP) on the processing of air passenger data to combat terrorism and other serious crimes is open for consultation by interested parties until Sunday.

The bill provides that air passenger data will be pseudonomised after six months. Names and date of birth will no longer be visible but the data will be stored for another four and a half years. Only then will they be deleted.

The Federal Administrative Court has he power to overturn pseudonymisation in the event of concrete suspicion. Those affected would have a right to information and the data would be managed by a new authority, the Passenger Information Unit (PIU).

Skeptical reactions

The bill has met with a critical response in the consultation responses received to date. The right-wing Swiss People’s Party rejects the law outright. It argues that it would lead to a dilution of the responsibilities of the federal intelligence service and create a new, expensive specialist unit. The collection of data for five years is disproportionate and encroaches on fundamental rights. The party explicitly refers to the ECJ ruling.

The Social Democratic Party believes authorities and companies should only process as much of citizens’ data as is absolutely necessary. This should also apply to air passenger data. Moreover, it doubts that such systematic data collection contributes anything at all to the fight against crime and terrorism.

The Centre welcomes the law. The party considers it would allow Switzerland to use the data it already supplies to more than 60 countries to fight terrorism.

Second bill, second consultation

In its statement, the Fedpol states that the responses from the consultation as well as the ECJ ruling will be incorporated into a new draft law. This will then be sent back for another consultation round.

Switzerland supplies passenger data to 62 countries, including the United States and the European Union. The United Nations Security Council demands that corresponding international systems be set up, which is why the Swiss government considers it has a duty to do so. The system is also a prerequisite for Swiss citizens to continue to be allowed to travel to the US without a visa.