Data and privacy issues are growing focus in US-Swiss talks: taxes, visas, banking

BERN, SWITZERLAND – Data privacy concern is increasingly raising its head in US-Swiss talks over taxes, visas and banking. The latest incident is linked to Switzerland’s decision to continue participating in the US visa waiver programme.

Parliament will have its say in US data demands for visa waiver programme

The Swiss Federal Council Wednesday 1 February made it clear it intends to move ahead with negotiations with the US in order to remain in the US visa waiver programme. Switzerland has been part of the programme since 1986 but in October 2009 the US announced that partners in the programme would have to observe two new rules, says Bern. They were told that “partner countries will be required to increase police cooperation. This will entail the conclusion of agreements about the automatic exchange of DNA and fingerprint data to prevent and to combat serious crime (PCSC) and the exchange of data about known and suspected terrorists.”

Swiss media and politicians have been speculating in recent weeks that the US has been pressuring the Swiss government to agree to the new rules and that, given Switzerland’s penchant for privacy and data protection, the Swiss government would refuse. Some 340,000 Swiss travel to the US every year and the visa waiver programme means they can visit as a tourist for up to three months without first obtaining a visa.

But Bern now says it plans to go ahead with the negotiations, noting, however, its own ground rules. The US “requires that two agreements in the security area should be finalized. The Federal Council has instructed the Federal Department of Justice and Police (FDJP) to formulate a negotiation mandate in this area. Parliament and the Cantons will be consulted before the final granting of the mandate. Data protection aspects will be duly taken into account in the negotiation of the agreements.”

Double taxation treaty talks bring up data release questions

Bern gives green light to send thousands of e-mails, but they remain encrypted

The sensitive issue comes up just as the lower house of parliament’s tax commission announced, 31 January, that Swiss President and Finance Minister, Eveline Widmer-Schlumpf had brought it up to date on US-Swiss double taxation treaty negotiations. Details were not provided except to say that the discussion covered interpretations of “judicial assistance”, a sticking point in the negotiations, and “recent demands by the US”, without elaborating on these.

Swiss-German public radio DSR reported, however, that some 4 to 6 million e-mails, mainly correspondence about banks’ commercial affairs, were being offered to the US by at least some of the 11 banks currently under investigation by the US Department of Justice—but that the correspondance is encrypted and will not be decrypted until the two countries reach an agreement. The e-mails contain the names of client advisers. The banks are suspected by the US government of helping US citizens evade taxes.

Encryption until “global solution” found

Spokesperson Roland Meier of the Federal Finance Department then confirmed to journalists the information published by DSR. He noted   that until a “global solution” is found with American judicial authorities, names that are encrypted may not be released unless a legal request is made to Swiss authorities, repeating what Widmer-Schlumpf said on television, “We will only decode when we have found a solution with the United States on all the banks that are under discussion.”

A legal request would need to respect the existing Swiss-US treaty and specifically state that the actions of the person whose information is being requested is punishable under both Swiss and US law. Details, TSR, French

Analysis, in French: Martin Naville, president of the Swiss-American Chamber of Commerce, analyzed the situation in a video interview with RSR radio, “Les choses ont changé” (6 minutes, free but registration required)

Switzerland’s vocal Americans joined by even louder Canadians

Americans in Switzerland, meanwhile, are expressing growing concern about their ability to maintain bank accounts for their daily living expenses, mortgages and pensions, with Swiss banks growing more wary of them as clients given US demands for information. A particular sticking point is the Fatca (Foreign Account Tax Compliance Act) law that starting in 2014 will penalize financial institutions around the world that don’t comply by revealing the accounts of US persons to the IRS and collect tax withholdings for the IRS from them.

Switzerland’s Americans were some of the first US citizens abroad to become aware of the problem, because of Swiss data protection issues and US efforts to obtain information from Swiss banks. But Americans living in Canadai are becoming increasingly vocal in their resistance to US efforts to obtain data. The larger US expat community in Canada recently formed the Isaac Brock Society, named after Sir Isaac Brock, who prepared Canadians for war with the United States and gave his life in repelling a US invasion in 1812, according to their site.