26 April 2022

Informationelle Selbstbestimmung / neues schweizerisches Datenschutzgesetz / Lawyer Well-Being

Dear readers

Today's issue, edited by Sandra Husi-Stämpfi, is all about informational self-determination in the digitalized age and the new Swiss data protection law. Reto Fanger, Peter Andres, Daniel W. Seiler, Marcel Griesinger, Ursula Uttinger and David Rosenthal have contributed articles. A detailed introduction to the issue by the editor can be found in the article "Guiding thoughts: are we the gravediggers of our informational self-determination and state digital sovereignty?".

Furthermore, in this issue we publish the latest whitepaper of the Liquid Legal Institute, edited by Kai Jacob, Jutta Löwe, Diane Manz, Dierk Schindler, Roger Strathausen and Bernhard Waltl. Lawyer Well-Being - Personal Health of Legal Professionals in Times of Disruption is about the health of lawyers in times of digital transformation and covid. First results of the empirical study have already been published in short form in Jusletter IT of September 30, 2021.

The topic of metaverse and NFTs is currently on everyone's lips. The Weblaw Academy is therefore focusing on this topic in May and June. We are organizing two half-day courses in which you will learn in an exclusive setting with a maximum of 3-4 participants everything you need for a successful session/meeting in the metaverse. You will practice moving purposefully in the virtual space and will experience a handshake with another avatar in the Metaverse for the first time. At the full-day Weblaw Metaverse Summit, which we are co-hosting with Härting Rechtsanwälte AG on June 28, 2022 in Zurich, we will get to the bottom of the Metaverse and the many questions it raises. How did the Metaverse come into being? Which legal aspects play a key role? Which use cases and business models already exist? What are NFTs and what is the significance of blockchains?

The next issues of Jusletter IT will already follow in May and June with contributions from the International Legal Informatics Symposium (IRIS) 2022. At this point, we can also already announce that we are currently working on the relaunch of Jusletter IT: With the September issue, we will launch a new website, an international team of editors, and many other improvements.

I wish you an exciting read!

Philip Hanke
Director of Publishing

Articles

Leitgedanken: Sind wir die Totengräber unserer informationellen Selbstbestimmung und staatlichen digitalen Souveränität?

Sandra Husi-Stämpfli

The faster the digital transformation progresses and the more «practical» the achievements of digitalization appear to be for our everyday lives, the less attention is paid to the risks that constitute the downside of the digital transformation. The digitalization of our everyday life goes hand in hand with an intensification of «surveillance» – not state surveillance, of course, but self-imposed surveillance by supposedly attractive gadgets. A similar phenomenon can also be observed in the context of a «digitalized» public administration: There, too, the discussion on whether the public administration should venture into a (public) cloud mainly refers to the advantages of such a solution. The author illuminates this phenomenon in her guiding thoughts, encourages a critical (re)examination of the topic and appeals for a more conscious perception of our informational self-determination.

Auswirkungen des revidierten Datenschutzgesetzes auf Cloudanbieter in der Schweiz

Reto Fanger

The revised Swiss Data Protection Act (revDPA) was adopted on September 25, 2020 and is expected to come into force on September 1, 2023, together with the likewise revised ordinances on the Data Protection Act (revODPA) and on data protection certifications (revODPC). This raises the question of the extent to which the new provisions will affect domestic and foreign cloud providers in Switzerland, especially since adapting data protection law to the technological challenges was a key revision objective.

Die Wolke lockt: Digitale staatliche Souveränität in Bedrängnis

Sandra Husi-Stämpfli

Peter Andres

The discussion about the use of cloud services in public administration is becoming more and more of a «Gretchen question»: «Tell me, how do you feel about the cloud?» Or more precisely: «How are you doing with the challenges that come with a cloud solution?» On the one hand, there are the undeniable advantages that cloud services bring to (cantonal or federal) institutions: High and especially stable computing power can be purchased comparatively cheaply and according to need. This is an almost unbeatable argument, were it not for the unavoidable security risks associated with cloud services due to cyberattacks, the legal challenges of commissioned data processing and data processing abroad and, finally, and finally the state and socio-political questions regarding digital state sovereignty. Particularly with regard to state digital sovereignty, however, it is clear that the debate on this topic is still in its infancy. It almost seems as if the relevance of data for the functioning of the state and internal security is underestimated because data is «not tangible» – in contrast, for example, to the state’s gold reserves, whose need for protection and domestic storage is not disputed. Sandra Husi and Peter Andres take up these issues in their article and classify the risks of cloud use in a state context in terms of state policy, law and technology. There cannot be a simple «black and white solution» in the cloud context either, which is why the authors point out ways of thinking and finding solutions as to how decision-makers can fulfil their responsibilities in the cloud environment.

Anforderungen an die Datensicherheit nach dem revidierten Datenschutzgesetz unter besonderer Berücksichtigung der Cyber-Sicherheit

Daniel W. Seiler

Marcel Griesinger

An effective security strategy for companies and governmental entities requires effective privacy and cyber security measures. In addition to targeted, specific measures, it is also important to implement the legal framework. The contribution by Seiler/Griesinger describes the legal framework for privacy and cyber security and then points out specific technical and organizational measures that should be included in a data security concept.

Neue Möglichkeiten der Überwachung – ändert das revidierte Datenschutzgesetz etwas?

Ursula Uttinger

The technical possibilities to monitor people are becoming easier and easier: video cameras everywhere, in the work environment but also cars that collect more and more data – often without the knowledge of the persons concerned and without adhering to the data protection principles. The protection of data subjects is not getting much better even with the revised Data Protection Act. Ethics as part of the solution is being discussed, a data protection ombudsman could be an alternative solution.

Datenschutz und KI: Worauf in der Praxis zu achten ist

David Rosenthal

Artificial intelligence (AI) systems require data – a lot of data. This has in the last years raised an increasing number of questions concerning all aspects of data protection and privacy in connection with AI: Can existing personal data be used for training AI systems and if so, under which conditions? Who is the controller, who the processor in such a setup – or can one party be both? What is the relevance of a «machine bias» in terms of data protection and is it possible to force an AI to reveal the personal data with which it has been trained? This article discusses these and other questions, provides practical answers and highlights both overestimated and underestimated privacy risks when using AI.

Liquid Legal Institute

Lawyer Well-Being – Personal Health of Legal Professionals in Times of Disruption

Kai Jacob

Jutta Löwe

Diane Manz

Dierk Schindler

Roger Strathausen

Bernhard Waltl

Massive forces ranging from COVID-19 to digital transformation are changing the world with unprecedented intensity and speed. It feels like our public, private, and professional lives will never be the same again. This should make us more aware of other threats lurking in the dark, which could be aggravated by the disruption we are facing. The Liquid Legal Institute (LLI) is tackling a sensitive issue that far too long has been taboo in the legal industry and that now, in times fundamental social change, may turn out to become a silent epidemic: the declining well-being and personal health of lawyers and legal professionals. With this booklet we aim to achieve three things: • break the taboo by putting a spotlight on this hot topic, • facilitate conversations by creating a reference point for our community, • spark ideas on how to tackle the underlying issues.