Tonnerre Lombard

Switzerland is celebrating the first of August again. For the 721st time in a row, Switzerland is aging one year. And for the fifth time, people received a letter from the conservative party (UDC).

Two years ago, on November 28, 2010, the people of Switzerland decided to adopt the UDC motion for compulsory deportation of «criminal» foreigners, that is, foreigners who violated the criminal law. Since then, the federal government was trying to work out a way to implement this motion into law without violating any human rights and without trampling too much on the rights of foreigners.

Lack of any notion of proportion

This is a very hard problem. UDC wants the motion to be implemented as-is into Swiss law. This is however a clear violation of human rights, because it makes it extremely easy for everyone to kick any foreigner they don’t like out of the country by alleging their involvement with a petty crime. The current Swiss law already covers the case where a foreigner commits serious violations of the criminal code. The extent to which the violations are serious has to be determined by a judge on a case-by-case basis. However, the motion would change this. Any crime, even a petty crime, would automatically lead to deportation. If this is put into context with the most recent attempts by the conservative forces all over the world to put anything they don’t like into criminal law, the implications are exorbitant.

Think about ACTA. It was an attempt, supported by the Swiss institute of Intellectual Property, to put criminal sanctions on copyright violations. This means if you mess up a quote from a book in your publication, you don’t only get to pay damages to the original author, but you also get automatically deported out of Switzerland and back into your home country.

There were similar attempts to put patent violations into criminal law. Note how extremely difficult it is nowadays to avoid running into patent violations when you develop any kind of products. If you implemented a web shop, for example, that would definitely get you deported.

Think about the cybercrime convention. If you use a media player to display DVDs you purchased on your laptop, that’s a criminal offence (circumvention of copyright protection) and you will get deported.

Think about the hacker tools legislation. If you’re a security researcher or a system administrator and you possess exploit code to do your daily job — definite deportation.

UDC still pushing

UDC however announced that, in their opinion, the Swiss government has been too slow in implementing their motion into law. Thus, they’ve sent out letters to every household in Switzerland (including the criminal foreigners and everyone else) asking for signatures for a new motion to implement the old motion as it was written down.

This is an even more difficult motion than the last one. A lot of time has to be devoted to making sure the new legislation will be in accordance with the basic human rights and with international treaties Switzerland has signed in the past. It is also very important that this new legislation doesn’t lead to mass deportations or a mass exodus of foreigners who bring a lot of money into the country and add a lot of expertise the small, largely rural 7.6 Million people nation of Switzerland just cannot offer all by itself. New laws take their time, and this one is so very precarious that it most definitely shouldn’t be rushed.

But more than that, UDC knows that complex legal matters take more than 1.5 years. This suggests that their main intention behind pushing this is to get exactly the legislation they had written down in the original motion, before the council or the parliaments get a shot at merging it with their own ideas and making it «weaker» so it can actually work without the detrimental effects UDC had in mind when drafting it.

As UDC is pushing right now, there can only be 3 outcomes from this law: a mass exodus, mass deportations or mass naturalization. This would give UDC a better argument to discriminate against naturalized citizens with their initiative proposal to give them differently colored passports and take away some of their citizen rights.

The petition against censorship which was filed to the German parliament from April 24th, 2009 has finally passed the 100’000 signers. On June 4th, 12 days before the end of the petition, 110’298 people have signed it.

The powers that be however decided to ignore the petition so far. Apart from a lapsus of the German minister of economy, von Gutenberg, who declared that everybody who was against censorship is a pedophile, none of the politicians of the social democrats (SPD) or the christian union (CDU), the governing parties in Germany, has mentioned the petition in any way. Family minister Ursula von der Leyen, who is currently campaining for her reelection, even removed the time for questions from her campaign events.

Since the petition has passed the necessary limit of 50’000 signers, the petition committee of the German parliament will at least have to consider it. The result of this will be very interesting.

In case Az. 5 C314/06 against the Federal Ministry of Justice, the District Court of Berlin Central has decided that all retained data must be deleted by the end of the contract with the customer. According to the judges, retention of data even beyond the contract period is a violation of the right to informational self-determination.

It has been a couple of days already, but on November 9th, around noon (finally not in a midnight session!), the German Parliament has adopted the law on data retention (VDS: Vorratsdatenspeicherung) with a lower limit of 6 monthes of retention. This legislation requires all connection metadata to be saved for 6 monthes before they may get deleted.

During the vote, which was held around noon, the parliament was an astonishingly empty place. This legislation, which can serve to turn Germany into a surveillance state, did not even raise enough interest among the parliamentarians to cause a significant majority of them to vote on the issue, which is a rather sad thing.

According to the German federal police, there is «no alternative» to the data retention policy. The same argument could be applied to death row, so it is utterly worthless as an argument.

I invite everyone who has talked to his local parliamentarian in Germany to have a word with him about why he did not appear in Parliament or why he voted in favor of the proposal (if so): have a look at the voting list for the German data retention law.

Not all is lost

But there is still a way to influence the legislation even after it has been passed. The Arbeitskreis Vorratsdatenspeicherung has a press release on their preparation of legal action against the law. According to the Arbeitskreis Vorratsdatenspeicherung, the legislation is in disagreement with the German constitution and thus cannot be adopted as it has been presented right now.

And the Arbeitskreis Datenspeicherung is not alone with this opinion: Parliamentarians of the Socialist Party (SPD) mentioned that they also don’t think the law is compatible with the constitution, but expressed that the Constitutional Court would take care of it.