On September 27 2010 the state prosecutor ordered the surveillance of all internet traffic and all available ancillary traffic data for a particular mobile phone. The Surveillance Authority for Post and Telecommunications ordered the mobile service provider to implement active surveillance of the relevant internet traffic and ancillary traffic data in accordance with the Technical Requirements for Telecommunications Surveillance. In particular, the authority required the provider to duplicate all IP traffic originating from the mobile device and to relay it to the competent authority.
The provider appealed and requested that the order be quashed. Alternatively, it requested a period of at least 10 months to implement a surveillance solution for relaying the mobile internet traffic. It argued that there was no adequate legal basis to relay mobile internet traffic in the law, the pertaining ordinance or the technical requirements. It argued that the law referred only to fixed-net Internet, whose technical structure differs substantially from mobile Internet. The authority did not take into consideration that mobile internet surveillance could not be accomplished the existing technical infrastructure and would require additional investments of at least Sfr500,000.
The authority requested that the appeal be quashed, arguing that the provider was under a legal obligation to undertake the surveillance in question.
On June 23 2011 the Federal Administrative Court upheld the appeal. The court found that the provider had sufficiently demonstrated that the cost of implementing the technical requirements for mobile internet traffic surveillance would amount to approximately Sfr500,000.
The court found that the provider, as a private company, was entitled to rely upon the constitutional protection of freedom of commerce. Therefore, the court proceeded to examine whether any constitutional rights had been violated. The court also found that an investment in the amount of Sfr500,000 would constitute a substantial burden on the provider and that it was unclear how it would technically realise the interception, as several solutions were possible. Therefore, the court examined whether there was an adequate legal basis for the surveillance method ordered by the authority.
Although a general obligation to intercept telecommunications traffic is foreseen in the law, the court found that the interception of internet traffic was described in Article 24 of the Lawful Interception Ordinance. It was not contested that the surveillance method ordered by the authority was listed neither in Article 24 of the Lawful Interception Ordinance nor in the Technical Requirements for Telecommunications Surveillance. Hence, the court found that there was insufficient legal basis for the authority to require the provider to implement the surveillance and quashed the authority's decision. In a similar case, the court found an equally insufficient legal basis for the surveillance of broadband internet traffic.(1)
Mobile internet surveillance is necessary in the modern world in order to prevent crimes and convict criminals. However, with this ruling the court has held that there must be a sufficient legal basis for an authority to be able to interfere with constitutionally protected rights such as the freedom of commerce (which includes the freedom to decide on how to spend and invest money).
It cannot be left to the prosecutor's discretion to request third parties to make substantial investments at their own cost in order to prevent or solve crimes without an explicit legal basis.
The requirement for a sufficient legal basis to interfere with constitutionally protected rights remains a cornerstone of the Swiss legal system. The public interest in combating or preventing crimes is not sufficient to permit the Surveillance Authority to infringe the constitutional right of freedom of commerce without a sufficient legal basis.
The court appealed to the Federal Council to remedy this loophole pending the revision of the Lawful Interception Ordinance.
For further information on this topic please contact David F Känzig at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45), fax (+41 44 421 45 00) or email ([email protected]).
(1) See Federal Administrative Court decision A-8284/2010, June 21 2011.