3.3 Government Access to Data
The access to private data transmitted by a communication services provider is also
subject to the FDPA. However, there is a civil law, the “Bundesgesetzüber den Postund Fernmeldeverkehr” (BÜPF), which governs the power authorities have regarding surveillance of telecommunication and digital communication. The Swiss Constitution generally prohibits systematic surveillance of communication.
Nevertheless, the government has an obvious interest in the surveillance of some
communication in case of impending crimes, in order to carry out its duties in
enforcing the law and ensuring security of the general population. The specific
permission of surveillance measures is a fought over aspect in politics, since the
surveillance is neither noticeable to the surveillance subject, nor is the subject aware
if the surveillance is legitimate. Therefore, the BÜPF introduces high requirements
for a legitimate surveillance measure.
Article 3 BÜPF provides a conclusive list of criminal offences, for which strong
suspicion must be presumed by authorities in order for a legitimate act of surveillance to be carried out. Furthermore, other means of investigation must have been
carried out, failed and a criminal procedure must have been initiated against the
individual subject to the surveillance. Such surveillance includes the collection and
analysis of communication metadata that is being collected by telecommunication
providers. Moreover, the power to conduct surveillance is limited to a specific public
authority that forms part of the executive branch. Most noticeably, Swiss Intelligence Agencies are not permitted to do this. Surveillance is ordered by a Judge
working presiding over the relevant case, which formally opens a request with the
Swiss Service for Special Tasks (Dienst für besondere Aufgaben). The Service then
works together with involved authorities (such as the Police) and telecommunications companies acting as technical specialists in the proceeding.
18 The scope and
duration of the measure is set by the judge and mostly limited to a maximum of
6 months. The affected individual must be informed of the measure once it has been
concluded in order to be able to seek legal counsel and challenge the order and
ultimately the use of the collected information.
The statute has recently undergone revision, providing authorities with further
capabilities in the area of GovWare use and other surveillance technology. The
revised law includes obligations on communications and internet access providers to
retain information such as IP addresses for a duration of 12 months. The scope of the
order is adjusted to the needs of the case taking into account the alleged offence as
well as the effects on the individual and the possibility of gathering the evidence
through less invasive means.
18 For more details ee: Datenschutzbeauftragter des Kantons Luzern, Merkblatt
Telefonüberwachung, https://datenschutz.lu.ch/-/media/Datenschutz/Dokumente/Publikationen/
dsb_lu_merkblatt_telefonueberwachung.pdf?la¼de-CH.
Swiss Data Protection Law
407
The access to private data transmitted by a communication services provider is also
subject to the FDPA. However, there is a civil law, the “Bundesgesetzüber den Postund Fernmeldeverkehr” (BÜPF), which governs the power authorities have regarding surveillance of telecommunication and digital communication. The Swiss Constitution generally prohibits systematic surveillance of communication.
Nevertheless, the government has an obvious interest in the surveillance of some
communication in case of impending crimes, in order to carry out its duties in
enforcing the law and ensuring security of the general population. The specific
permission of surveillance measures is a fought over aspect in politics, since the
surveillance is neither noticeable to the surveillance subject, nor is the subject aware
if the surveillance is legitimate. Therefore, the BÜPF introduces high requirements
for a legitimate surveillance measure.
Article 3 BÜPF provides a conclusive list of criminal offences, for which strong
suspicion must be presumed by authorities in order for a legitimate act of surveillance to be carried out. Furthermore, other means of investigation must have been
carried out, failed and a criminal procedure must have been initiated against the
individual subject to the surveillance. Such surveillance includes the collection and
analysis of communication metadata that is being collected by telecommunication
providers. Moreover, the power to conduct surveillance is limited to a specific public
authority that forms part of the executive branch. Most noticeably, Swiss Intelligence Agencies are not permitted to do this. Surveillance is ordered by a Judge
working presiding over the relevant case, which formally opens a request with the
Swiss Service for Special Tasks (Dienst für besondere Aufgaben). The Service then
works together with involved authorities (such as the Police) and telecommunications companies acting as technical specialists in the proceeding.
18 The scope and
duration of the measure is set by the judge and mostly limited to a maximum of
6 months. The affected individual must be informed of the measure once it has been
concluded in order to be able to seek legal counsel and challenge the order and
ultimately the use of the collected information.
The statute has recently undergone revision, providing authorities with further
capabilities in the area of GovWare use and other surveillance technology. The
revised law includes obligations on communications and internet access providers to
retain information such as IP addresses for a duration of 12 months. The scope of the
order is adjusted to the needs of the case taking into account the alleged offence as
well as the effects on the individual and the possibility of gathering the evidence
through less invasive means.
18 For more details ee: Datenschutzbeauftragter des Kantons Luzern, Merkblatt
Telefonüberwachung, https://datenschutz.lu.ch/-/media/Datenschutz/Dokumente/Publikationen/
dsb_lu_merkblatt_telefonueberwachung.pdf?la¼de-CH.
Swiss Data Protection Law
407