Facts
The Digital Society Association and several private individuals approached the Federal Intelligence Service (NDB) on August 31, 2017, with requests to refrain from radio and cable surveillance, to instruct the parties involved to cease their activities, and to determine that radio and cable surveillance violates their fundamental rights. The NDB did not enter into the requests, whereupon the applicants filed a complaint with the Federal Administrative Court.
The Federal Administrative Court dismissed the complaint, as the applicants had no protected interest in the sense of a special disadvantage. The applicants appealed against this to the Federal Supreme Court in public law matters.
Considerations
The Federal Supreme Court upholds the appeal and refers the matter back to the Federal Administrative Court for a substantive assessment of the requests. It justifies this as follows:
The appellants plausibly claim a violation of their fundamental rights protected by the ECHR and the Federal Constitution. Even if they are not specifically targeted as target persons of radio and cable surveillance, there is a risk that their data will be processed as part of these surveillance measures. Journalists and lawyers are particularly affected, as their confidential communications are protected.
Since the appellants have no way of becoming aware of specific measures of radio and cable surveillance affecting them, they are dependent on having the entire system of this surveillance reviewed for its conformity with the…