Ordinance of August 16, 2017, on Intelligence Service (OInt) - Collaboration of the FIS with Other Services and Persons in Switzerland (NDV)

Within the framework of the legislation and the basic mission assigned to it, the Federal Intelligence Service (FIS) may collaborate: a. with other federal services; b. with cantonal services; c. with individuals, companies, and organizations.

The collaboration particularly focuses on the following areas: a. information gathering; b. threat assessment; c. advisory services; d. support; e. training.

The FIS collaborates with the inter-cantonal conferences of the cantonal governments, notably the Conference of the Directors of the Cantonal Departments of Justice and Police (CCDJP) and the Conference of the Commanders of the Cantonal Police Forces of Switzerland (CCPCS).

The collaboration with the CCDJP and the CCPCS particularly focuses on maintaining internal security and the reciprocal exchange of information for the fulfillment of their respective legal duties.

The Federal Intelligence Service and the Military Intelligence Service collaborate closely in areas where the tasks to be executed overlap pursuant to Art. 6, para. 1, of the Intelligence Service Act (ISA), and Art. 99, para. 1, of the Military Act of February 3, 1995 (MA).

They support each other in the execution of their respective tasks, notably through: a. the regular transmission of information and assessments in areas where the tasks to be executed overlap pursuant to Art. 6, para. 1, ISA, and Art. 99, para. 1, MA; b. information gathering; c. training and advice; d. coordination of international cooperation.

Each service may request information from the other at any time.

For military support services conducted in Switzerland and related to tasks to be executed pursuant to Art. 6, para. 1, letter a, ISA, the Federal Intelligence Service assumes responsibility concerning intelligence matters in relation to the intervention leadership.

In anticipation of an active service commanded by the military, the Federal Department of Defense, Civil Protection and Sport (DDPS) may order collaboration with the Military Security Service for the implementation of a set of preventive protection measures. The FIS supports the Military Security Service in the area of military protection against espionage, sabotage, and other illicit acts.

The Federal Intelligence Service (FIS) and the Federal Office of Police (fedpol) shall support each other, particularly in the areas of training and advisory services, as well as in the deployment and utilization of operational resources and means.

The FIS and fedpol shall mutually exchange all information necessary for each to perform the tasks assigned to them by law, particularly in accordance with Annex 3, Sec. 9.3, and the non-public list of the Federal Council as referred to in Art. 20, Para. 4, LRens.

The flat-rate remuneration for services provided by the cantons for the execution of the Intelligence Service Act (LRens) is calculated based on the amount of the ad hoc credit granted and according to the distribution key in force among the cantons.

The distribution key is determined based on the total employment rate of individuals whose work within the cantonal authorities predominantly involves the execution of tasks as defined by the LRens.

The SRC sets the distribution key with the cantons and according to needs, at least every four years. For this purpose, it consults the CCPCS.

If the SRC and the cantons cannot agree on the amount of the remuneration, the DDPS makes a decision after consulting the heads of the cantonal police forces.

The SRC evaluates the execution of tasks by the cantons to determine if it corresponds to the amount of their remuneration.

After consulting the head of the Federal Department of Justice and Police (FDJP) and the Federal Department of Foreign Affairs (FDFA), the Federal Department of Defence, Civil Protection and Sport (DDPS) submits a classified proposal to the Federal Council each year regarding the principles of the Federal Intelligence Service's (FIS) collaboration with foreign intelligence services.

The proposal includes a list of foreign services with which the FIS regularly maintains intelligence contacts, along with an assessment of the utility, costs, and risks associated with these contacts.

The FIS maintains regular intelligence contacts with foreign services only after being authorized by the Federal Council.

The Federal Intelligence Service (FIS) is competent to establish intelligence-related contacts with foreign intelligence services and other foreign services performing civil intelligence tasks.

It coordinates all intelligence-related contacts established by federal and cantonal administrative services according to the principles of collaboration with foreign authorities set by the Federal Council pursuant to Art. 70, para. 1, let. f, of the Intelligence Service Act (ISA). In this context, it determines a common policy with the Military Intelligence Service concerning partner services and plans the contacts.

It represents Switzerland in international intelligence bodies that carry out civil intelligence tasks.

In specific cases, it may delegate the cantonal execution authorities to establish contacts with foreign intelligence services concerning certain topics.

For the purpose of fulfilling the tasks assigned to it by law, the SRC may collaborate on a binational or multinational level with foreign services.

The FIS may autonomously conclude international agreements with foreign intelligence services or other foreign services that perform tasks within the meaning of the provisions of the LRens, with the aim of settling secondary technical matters related to intelligence service activities.

The cantons inform the FIS of their cooperation in security matters with foreign police services and other services in the border area, insofar as this cooperation pertains to tasks falling under the Intelligence Service Act (LRens).

The SRC may conduct operations, which are time-limited processes related to information gathering pursuant to Art. 6 LRens. These operations exceed the normal scope of standard intelligence activities in terms of their importance, scope, required resources, or the maintenance of secrecy. Such operations must be formally initiated and concluded and must be documented separately.

If the SRC seeks information in collaboration with a national service or assigns an information retrieval mandate to a national service, the latter must fulfill at least one of the following conditions to ensure a legally compliant search: a. the information retrieval occurs within the framework of the service's ordinary activity; b. the information retrieval occurs outside the framework of the service's ordinary activity, but the service possesses the required skills and knowledge of the applicable legal provisions concerning information search; c. the service is previously instructed by the SRC regarding the retrieval mandate and the applicable legal provisions. National services are required to maintain confidentiality concerning any collaboration and mandate with respect to third parties, except for communications to superior services or supervisory and control bodies. Any other exception to this rule requires the SRC's approval. The SRC documents the collaboration or the mandate.

If the FIS seeks information in Switzerland in collaboration with a foreign service or assigns an information gathering mandate to a foreign service, it ensures that the research complies with the law: a. by communicating the applicable legal provisions to the foreign service and instructing it if necessary, and b. by having the foreign service confirm that it complies with the legal provisions.

The FIS monitors, as far as possible, compliance with the applicable legal provisions during the information gathering process. If these are not adhered to, and if no correction is possible within a reasonable timeframe, the FIS terminates the collaboration or mandate and informs the independent supervisory authority.

The FIS documents the collaboration or the mandate.

If the FIS seeks information in Switzerland in collaboration with a private individual or assigns an information-gathering mandate to a private individual, it is required to communicate the applicable legal provisions to them and provide instruction if necessary to ensure a lawful search.

The private individual must confirm to the FIS that they comply with the legal provisions.

The FIS monitors compliance with the applicable legal provisions during the information gathering as much as possible. If these provisions are not respected and no correction is possible within a reasonable time frame, the FIS terminates the collaboration or the mandate and informs the independent supervisory authority.

The FIS documents the collaboration or the mandate.

If the SRC (Intelligence Service) seeks information abroad in collaboration with a foreign service or an individual overseas, or if it assigns an information-gathering mandate to a foreign service or an individual abroad, it is required to communicate the applicable legal provisions to the foreign service or individual and instruct them if necessary to ensure lawful information gathering.

The foreign service or individual must confirm to the SRC that they have acknowledged the applicable legal provisions.

The SRC shall monitor, as far as possible, the compliance with the applicable legal provisions during the information gathering. If these are not adhered to, and if no correction is possible within a reasonable timeframe, the SRC shall terminate the collaboration or mandate and inform the independent monitoring authority.

The SRC shall document the collaboration or the mandate.

The sources of intelligence information are, in particular: a. informants according to Art. 15 LRens; b. national and foreign intelligence services and security authorities with which the SRC collaborates; c. technical sources utilized for information gathering under Chapter 3 LRens.

In particular cases and subject to Art. 35 of the Intelligence Service Act (ISA), the Federal Intelligence Service (FIS) weighs the interests of protecting the source against the interests of the services requesting information.

In the cases mentioned in para. 1, it fully protects informants it has commissioned or those commissioned at its request by cantonal enforcement authorities when these informants are exposed to a serious danger threatening their physical or psychological integrity due to the disclosure of their identity or circumstances that could lead to the discovery of their identity. The informants' close relatives benefit from the same protection.

It is possible to forgo full protection if the informants concerned consent to the disclosure.

In duly justified special cases, the FIS may request the support of fedpol to ensure the protection of informants commissioned by it or by cantonal enforcement authorities at its request, as well as their close relatives.

Regarding technical sources, all data must be protected unless their transmission does not risk directly or indirectly threatening the mission of the FIS.

The FIS submits an annual report to the head of the DDPS regarding all operations that have been conducted or discontinued and on all informants commissioned during the year under review. It evaluates the usefulness, costs, and risks of these operations. Furthermore, the report details, for each operation, the information-gathering measures that the head of the DDPS has pre-approved pursuant to Articles 30 and 37, paragraph 2, of the ISL.

To justify a request for information under Art. 19 of the Intelligence Service Act, the Swiss Intelligence Service (SIS) or the cantonal enforcement authority shall summarily inform the competent authorities or organizations about the specific threat to be detected or averted, or about the protection of important national interests.

The organizations that the Confederation or the cantons have entrusted with public tasks and which are required to provide information to the SIS under Art. 19 of the Intelligence Service Act are listed in Annex 1.

Searches of premises, vehicles, and containers conducted as part of authorized investigation measures must be documented.

The FIS documents for search measures requiring authorization: a. the authorization procedure; b. the consultation with the head of the FDFA and the head of the FDJP; c. the approval decision for the execution of this measure; d. when the measure demands it, the procedure provided for in Art. 31 of the Intelligence Services Act (ISA) and compliance with deadlines; e. the conclusion of the search measure; f. the termination of the operation when the measure has been executed within the framework of an operation; g. the information provided to the individual, the postponement of the information, or the waiver of communication in accordance with Art. 33 of the ISA.

Documentation must be in written or electronic form and can be accessed at any time.

The authorization procedure complies with the Federal Act on Administrative Procedure of December 20, 1968. Art. 38 of the Act of June 17, 2005, on the Federal Administrative Court applies to recusal. The procedure entails no costs.

Correspondence between the FIS and the Federal Administrative Court is in electronic form. The procedural file is kept in electronic form. Decisions related to the procedure and authorization decisions are communicated to the FIS electronically.

The DDPS documents in written form the decision-making process of the head of the DDPS regarding the approval of the execution of the measure.

It communicates the decision of the head of the DDPS concerning the approval of the execution of the measure to the FIS and the Federal Administrative Court.

If a person belonging to one of the professional groups mentioned in Arts. 171 to 173 of the Code of Criminal Procedure is under surveillance pursuant to Art. 27 of the LRens, it must be ensured that the FIS does not come into possession of information related to a professional secret that is unrelated to the reason for the surveillance. In the authorization procedure under Art. 29 LRens, the FIS shall indicate that the information must be sorted according to Art. 58, para. 3, LRens.

The FIS must submit a preliminary request to the head of the DDPS if it plans to infiltrate computer systems and networks abroad. The request must be justified in writing and contain the following information: a. the legal domain within which the information search is conducted; b. the type of information sought through the search measure; c. any other services or third parties the FIS intends to mandate for the execution of the search measure; d. the period during which the search should occur; e. the designation of the relevant computer systems and networks; f. the necessity, proportionality, and risks of the measure.

The head of the DDPS examines the request before submitting it to the head of the FDFA and the head of the FDJP. The head of the FDFA and the head of the FDJP provide their opinion on the matter as soon as possible.

After taking these opinions into account, the head of the DDPS makes a decision regarding the request. He may authorize the FIS to infiltrate the computer systems and networks multiple times under the same request.

The DDPS documents the course and outcome of the consultation and decision-making process. The FIS documents the implementation, results, and conclusion of the agreed measures.

The FIS may collect important security policy information through cable network surveillance in the following areas and for the purposes listed below: a. in the field of terrorism: to detect activities, connections, and structures of terrorist groups and networks, as well as to identify activities and connections of isolated activists; b. in the field of proliferation: to investigate the dissemination of nuclear, biological, or chemical weapons, including their delivery systems and all goods and technologies usable for civil or military purposes necessary for their manufacture (NBC proliferation), to investigate the illegal trade of radioactive substances, war material, and other armament goods, to identify weapons of mass destruction programs, including their delivery systems, and to detect procurement structures and attempts; c. in the field of counter-espionage: to detect activities and structures of foreign state or non-state actors; d. in the field of foreign actions and motives targeting Switzerland as well as foreign acts or conflicts impacting Switzerland: to assess the security situation, regime stability, military potential, and armament development, factors influencing strategies and potential developments; e. in the field of cyber threat exploration and critical infrastructure protection: to investigate the nature of engagement, the origin, and technical characteristics of cyber-attack means, and to implement effective defensive measures.

The Cyber and Electromagnetic Space Actions Service (CESAS) conducts exploration of the cabled network.

The FIS and CESAS agree on the principles of collaboration, the granting of mandates, and their execution.

CESAS serves as the point of contact for wired network operators and telecommunications operators on all matters related to the exploration of the cabled network.

The ACEM requests from the operators of wired networks and telecommunications service providers the technical data required for the establishment of exploration requests and the execution of cable network exploration mandates; if necessary, it may ask that these data be declared necessary and that they be completed or updated.

It handles the cable network exploration mandates of the SRC.

It acquires the technical installations necessary for the accomplishment of its tasks.

It may propose to the SRC the integration of additional search criteria within the framework of authorized and approved categories in ongoing mandates. These search criteria may also derive from results obtained within the framework of other mandates, in particular from radio exploration.

The ACEM, through internal measures, ensures that the mission is carried out within the framework of the authorization.

The SCIS destroys the results obtained from cable network exploration no later than at the end of the mandate for the cable network exploration concerned.

It destroys the recorded communications at the end of the mandate, but no later than 18 months after their recording.

It destroys data related to established recorded communications at the end of the mandate, but no later than 5 years after their recording.

Wired network operators and telecommunications operators shall inform the ACEM of the service responsible for handling mandates.

They shall guarantee ACEM access to their premises for the purpose of cable network exploration, allowing it to install the necessary technical components for the execution of cable network exploration mandates.

Annex 2 regulates the compensation for services provided by wired network operators and telecommunications operators in the context of cable network exploration.

The contacts of the DIMS with foreign intelligence services are conducted through the FIS.

Annex 3 governs the communication by the FIS of personal data to the mentioned authorities and services.

With each communication, the FIS informs the recipient of the reliability and timeliness of the transmitted data.

It records the communication, its recipient, its subject, and its reason.

The communication of personal data is prohibited when it is contrary to overriding public or private interests.

Cantonal executive authorities may communicate situation assessments and data notably to the following recipients: a. other cantonal authorities for the purpose of executing the LRens; b. cantonal executive authorities of other cantons within the context of preliminary investigations or inter-cantonal working groups in which they participate; c. cantonal public prosecutors and police, in compliance with Art. 60, paras. 2 to 4, LRens, for the purpose of danger prevention and criminal prosecution; d. cantonal authorities responsible for the execution of penalties and measures for carrying out their tasks; e. respecting the protection of sources and classification: 1. services to which the penal execution authority is subordinated, or 2. other services in particular cases, for the purpose of exercising their official duties, especially to perform their function of situation assessment, leadership, or governance.

If a cantonal executive authority has received situation assessments or data from the SRC, or has consulted them in the SRC INDEX system or in the PES, it must obtain the consent of the SRC before any communication. The SRC may give its agreement for the specific case or for certain categories of data and recipients if the communication aids in the assessment of measures aimed at preserving security or is necessary to avert a significant threat.

Cantonal executive authorities cannot communicate any situation assessment or data when overriding public or private interests oppose such communication.

The SRC may grant the cantonal supervisory authority permission to consult situation assessments or data processed by the canton on behalf of the Confederation, for specific categories of data and recipients.

In cases of emergency, a cantonal executive authority may communicate situation assessments and data to other authorities or third parties without the authorization of the Federal Intelligence Service (FIS), provided it cannot obtain such authorization in time and the communication is necessary to avert an imminent serious threat to internal or external security, or to protect significant legal interests such as bodily integrity or life, or assets of considerable value.

It ensures the protection of sources.

It informs the FIS without delay of the communication and its reason.

Information may be communicated to law enforcement authorities in the form of a written service report for use in court proceedings within the framework of criminal proceedings.

Art. 61 of the Federal Act on the Intelligence Service (LRens) governs the communication of personal data to foreign authorities by the Swiss Intelligence Service (SRC).

The SRC may also directly exchange personal data with foreign authorities through international automated information systems pursuant to Art. 12, para. 1, let. e, LRens.

In dealings with foreign law enforcement authorities, it observes the provisions of the March 20, 1981, Federal Act on International Mutual Assistance in Criminal Matters.

When communicating personal data, it informs the recipient regarding the reliability and currency of the data transmitted.

It informs the recipient: a. of the purpose for which they are exclusively authorized to use this data; b. of the fact that it reserves the right to request information on the use of this data.

It records the communication, its subject, and its recipient.

In the event of a serious and imminent threat: a. departments may request the Federal Council to have the Intelligence Service (SRC) intervene in order to safeguard other important national interests; b. cantons may submit a request to the Federal Council for the SRC to intervene to safeguard other important national interests; the DDPS shall propose to the Federal Council to respond to the request.

The request must contain the following information: a. type, severity, and urgency of the concrete threat; b. purpose and duration of the mission; c. intelligence means to be deployed; d. human and financial resources potentially necessary to be allocated to the mission; e. competencies of the Confederation and the cantons available to combat the threat; f. specific measures already decided.

The requesting service shall consult the SRC in advance.

The Federal Chancellery, on behalf of the Federal Council, shall inform the Delegation of the Management Commissions and the Delegation of Finance of the Federal Chambers in writing, within 24 hours, of the mandates entrusted by the Federal Council or the requests rejected pursuant to Art. 3 or 71 ISA.

The FIS may, on its own initiative or at the request of one or more cantons, initiate an examination procedure if there is a presumption, based on concrete evidence, that Swiss nationals, persons residing in Switzerland, or organizations and groups active in Switzerland are systematically engaging in activities falling within the domains listed in Art. 6, para. 1, let. a, of the ISR.

The examination procedure is intended to determine whether individuals, organizations, or groups should be included on the observation list. The FIS gathers and analyzes all necessary information.

The FIS defines the scope and commitment of the information-gathering resources, as well as the duration of the procedure. It informs the cantons whose cooperation is necessary for the information-gathering process.

It periodically reviews, at least once every six months, the examination procedure to determine if the conditions for its continuation are still met.

The SRC suspends the examination procedure: a. when another criminal, civil, or administrative procedure pursuing the same purpose is opened against the persons, organizations, or groups in question; b. when the evidence in hand is refuted by new data and no new grounds for charges appear; c. when no significant new security information has been obtained within two years; or d. when, following a new assessment of the situation, the activities of the persons, organizations, or groups involved no longer represent a threat to internal or external security.

The examination procedure is also suspended if: a. the concerned organization or group has been listed on the observation list; b. the concerned person is a member of an organization or group listed on the observation list.

The FIS keeps the watch list updated pursuant to Art. 72 RIS.

There is a credible indication to presume a threat to internal and external security, particularly in the following cases: a. when dealing with organizations and groups as defined in Art. 72, para. 2, RIS; b. when activities threatening Switzerland's security are revealed during the review procedure referred to in Art. 37; c. when serious incitements to acts of violence have occurred or are occurring, or, based on concrete indications, are expected in the future; d. when support for violent extremist or terrorist acts has occurred, is occurring, or, based on concrete indications, is expected in the future; e. when attacks or kidnappings have occurred, are occurring, or, based on concrete indications, are expected in the future.

The FIS seeks and processes all information on the concerned organizations and groups as defined in Art. 5, para. 8, RIS, as well as on their key representatives.

It reviews the watch list each year and submits it for approval to the Federal Council.

The requesting department shall annually review whether the conditions required to impose this prohibition continue to be met.

If the conditions are no longer fulfilled, it shall propose to the Federal Council to lift this prohibition.

The requesting department examines before the expiration of the deadline whether the conditions for the prohibition remain met and, if applicable, proposes to the Federal Council that this prohibition be extended.

The services within the meaning of Art. 69 of the Intelligence Service Law (LRens), as well as the conditions governing their provision, content, duration, termination, and any applicable fees, must be agreed upon either orally or in writing.

Insofar as this ordinance does not contain any specific regulations on the subject, the provisions of the General Ordinance of September 8, 2004 on Fees and the Ordinance of November 8, 2006 on DDPS Fees apply.

The FIS may grant a waiver of the fee or waive it entirely when: a. the collection of the fee results in a cost higher than the service itself, or b. other reasons, in the context of the service or concerning the liable person, suggest that the collection of a fee is disproportionate.

The FIS ensures that its employees are trained in the following areas: a. the legal framework governing intelligence activities; b. internal strategy and priorities in the implementation of the core mission. It coordinates its internal control activities with the audits provided by higher oversight bodies. It uses technical means to establish an overview of all information search mandates.

The FIS ensures, with regard to the cantonal executing authorities, adequate oversight of the execution of the mandates it has entrusted to these authorities.

It advises the cantonal executing authorities on all matters related to the implementation of the Intelligence Service Act, particularly concerning the handling of intelligence data.

An internal service designated by the FIS conducts searches of individuals and their belongings as well as checks of premises within the facilities of the FIS; it may call upon third parties.

Third parties called upon must possess a valid security clearance for individuals and have police training or training deemed equivalent.

Security and control measures include: a. the search of bags and other containers and objects carried; b. clothing inspection, superficial body pat-downs, and the use of a metal detector or a similar detection device; c. random checks on the contents of outgoing postal shipments.

The Intelligence Service (SRC) may examine data carriers transported by individuals to verify compliance with information security provisions.

Individuals subject to inspection may be asked to open closed containers they are carrying or the contents of electronic data carriers and to decrypt them if necessary.

Employees of companies providing services to the SRC on its premises must be informed that they may be subject to inspection.

The SRC may provide lockable containers at the locations it uses for storing personal effects; these containers are excluded from control measures. It is not liable for stored items.

Inspections of premises may also be conducted in the absence of the individuals concerned.

Locked containers or private objects clearly identifiable as such are not inspected.

The Federal Intelligence Service (FIS) may at any time request the return of objects it has made available.

All persons entering the field of view of image transmission and recording devices must be informed, by a clearly visible indication, that they are being filmed by a video surveillance system.

The FIS destroys recordings after 30 days unless they are required as evidence in a proceeding. In such cases, the destruction takes place at the final closure of said proceeding.

The FIS may prohibit the introduction of electronic devices into the premises it uses.

Access to the premises of the FIS housing the secure computer network is controlled.

Access control must ensure the identification of all individuals who have access to the secure computer network.

Insofar as the FIS does not itself carry out access control, the operator must provide it with secure online access to the data from said control.

Service weapons are deemed to be: a. irritant substances; b. firearms.

Any member of the FIS personnel facing a particular danger in the exercise of their duties is authorized to carry a service weapon.

The director of the FIS confirms the inclusion in the group of persons referred to in para. 2 by authorizing the carrying of a service weapon when: a. the individual danger faced by the concerned employee necessitates it, and b. the superior of the concerned employee or the person responsible for weapons and shooting in the FIS sees no objection to this employee carrying a service weapon; there is reason to do so when indications suggest that the employee poses a threat to themselves or others.

Anyone authorized to carry a firearm must: a. hold a police officer's certificate, issued by the State Secretariat for Education, Research and Innovation, or provide evidence of training deemed equivalent, and b. complete shooting training equivalent to police basic training, and participate annually in several shooting training sessions conducted by the FIS.

The FIS ensures that service weapons and ammunition are stored in a secure location.

Employees authorized to carry a firearm may use the following types of ammunition

a. jacketed bullets;

b. controlled expansion bullets;

c. training ammunition.

The organization of firearms training is the responsibility of the weapons and shooting officer of the ISR. The latter may collaborate with other services for the fulfillment of his tasks.

If the Head of Weapons and Shooting of the SRC identifies any reasons preventing a person from carrying a service weapon, they shall withdraw it from them.

The Director of the SRC decides, after hearing all interested parties and, if necessary, consulting with other experts, whether the person concerned may retain their authorization to carry a service weapon.

The repeal and amendment of other acts are governed in Annex 4.

The 50-year protection period for the archives of the Swiss Intelligence Service or any of its predecessor organizations is extended by 30 years for records already classified in the Swiss Federal Archives at the time of entry into force of this ordinance.

The archives for which the protection period is extended pursuant to para. 1 may be consulted subject to Art. 12, para. 2, of the Federal Act of June 26, 1998, on Archiving, if the foreign security service concerned with the archives in question raises no objection regarding the consultation.

This ordinance enters into force on September 1, 2017.