Dr. Ursula Widmer

People-tracking and Swiss Data Protection Law

People-tracking systems are being used increasingly, e.g. for optimizing flows of traffic and people or for analysis of customer behavior. Since these systems can also be used for processing sensitive data and personal profiles, the Swiss Federal Data Protection and Information Commissioner (FDPIC) considers that caution is called for and that closer scrutiny of the data protection conditions is necessary. The FDPIC has published comments on people-tracking, which are available its website.

The FDPIC differentiates between two main types of tracking systems: firstly, systems that directly record personal features such as biometric face data or car registration numbers, and, secondly, other systems that record mobile devices by means of the IMSI or TMSI number or MAC address. Whilst systems of the first type clearly process personal data, this is not so obvious when it comes to the second type. This is because, in the context of the second type of tracking system, the recorded numbers cannot be allocated directly to specific persons by the operators of the tracking systems. Yet since, if additional factors are taken into account, e.g. in combination with photographs from security cameras or due to an individual members of staff being identifiable from specific patterns of activity, this data could potentially be traced to specific or identifiable individuals, the FDPIC considers that the second type of system also processes personal data. Whether this is true generally or only for those cases in which the additional factors necessary for the data to be assigned to individual persons are present, is indeed a matter for further clarification.

The FDPIC indicates that grounds for justification are required for the processing of personal data. For practical reasons, the possibility of obtaining consent from those affected is normally ruled out since, under the conditions in which tracking systems are normally used, it is not possible to inform the individuals concerned adequately about the collection and processing of data, as required in order to obtain a valid consent. Thus, the remaining grounds for justification are overriding public or private interests. Such grounds normally exist if the data obtained by the tracking system are not analyzed on the individual level, for example where tracking systems are used for monitoring passenger flows at airports or rail stations, observing traffic flow to avoid jams, measuring customer footfall or analyzing customer behavior on the basis of customer categories.

In its comments the FDPIC went on to discuss further issues, e.g. issues regarding the establishment of categories of persons, notification of individuals concerned regarding the use of tracking systems by means of appropriate sign-boards and (on request) appropriate information material, and in relation to special requirements if the systems are used for collecting biometric data.

In the opinion of the FDPIC the prior consent of those concerned is always necessary if private individuals wish to use a tracking system to monitor individuals or to create personal profiles, because there would be no possible overriding private interest in this case. It remains to be seen in the future, depending on how the fields of application for such systems evolve, whether this categorical statement is true and there are no possible exceptions.

According to the applicable regulations on the protection of employees, it is not permissible for tracking systems to be used for monitoring the behavior of employees, regardless of whether or not they have given their permission.