Interpellation Baumann (03.3552): Who bears the costs of monitoring telecommunications?
07.10.2005: Written off because pending for more than two years.
Submitted text
The Federal Council is asked to answer the following questions:
1. is it of the opinion that telecommunications service providers (TSPs) should at least be compensated for the effective costs incurred in telecommunications monitoring?
2. does it believe that this also means that the costs of the facilities that procure the FDA as an upfront service are to be settled with the compensation?
3. does it believe that the costs of law enforcement, which is the task of the state, should not be imposed on the economy and private telephone users, because this would have to lead to a subsidization of surveillance?
4. does it believe that the current de facto obligation to provide services to the state without compensation violates the economic freedom of providers?
(5) Does it believe that if investment costs were to continue to be uncompensated, this could ultimately lead to a reward for inefficiency because providers would be tempted to forego investment and instead provide services using inefficient methods and high labor costs?
6. does he think that cheap surveillance measures for the authorities could lead to a greater restriction of civil liberties?
Justification
- By law (Federal Act on the Surveillance of Postal and Telecommunications Traffic, BÜPF), TSP providers are obliged to carry out the surveillance of telecommunications traffic ordered by the competent authorities.
- For the implementation of the increasing and ever more complex monitoring measures, very high investments and an expensive operational organization (with on-call services) are required on the part of the providers.
- Article 16 BÜPF stipulates under the heading “Fees and compensation”:
(1) The facilities required for monitoring shall be borne by the providers of postal and telecommunications services. They shall receive reasonable compensation from the ordering authority for the costs of the individual monitoring.
2. the Federal Council shall regulate the compensation and set the fees for the services of the Service.
- The possibilities for surveillance are almost limitless. Information technology makes almost everything possible. But the question is who bears the immense costs. The polluter pays principle should apply: Whoever wants to monitor should also know the (price) consequences.
- The compensation paid today for individual monitoring services on the basis of this regulation does not cover their costs. In addition, many providers have to make massive investments in order to meet the strict requirements of the BÜPF. These costs increase the greater the technological possibilities become.
- If the costs are not recovered from the polluters, the TSPs must include them in the residential and commercial rate setting, which should result in an unjustified rate distortion.
- The law enforcement agencies criticize the “too high fees”, some of their representatives provocatively demand that everything should be delivered to them – immediately and free of charge – after all, the telephony providers also have the telephony business.
- The regulation on fees and compensation will be revised this year under the leadership of DETEC. The law enforcement authorities and the FDA will be consulted.
- The possibilities for surveillance using technical infrastructure in the telecommunications sector, but also in the area of information technology, are almost limitless. Cell phones, for example, can not only be tapped, but it is possible to determine very precisely from where calls were made. Virtually seamless monitoring of individuals is technically feasible:
- This is a novelty and an effect of the rapid technological development, especially the Internet. Via the networking of databases, the installation of state-of-the-art computers and software programs, the transparent person is becoming a reality. The positive results achieved in the fight against crime are numerous. Not least, the arrests of numerous Internet users due to the recording of their Internet queries are eloquent testimony to these possibilities. Nevertheless, the question of proportionality also arises more and more.
- The compensation regulation currently still in force sets virtually no financial limits for the authorities authorized to monitor. A closer look reveals that this opens the door to almost limitless surveillance: As the possibilities for monitoring become more and more versatile, the demands and inquiries of the authorities increase vis-à-vis the providers. This also increases the costs for the providers and ultimately for the customers. Regardless of the change in technology, however, the same compensation is still approved as five years ago. The result is the implementation of a disproportionately large number of extensive monitoring measures at a disproportionately low price.
- Something must be done to prevent the latent danger of excessive surveillance of this country’s citizens by means of electronic tools from arising in the first place. Today, law enforcement agencies purchase surveillance services at unrealistically low prices. This encourages unrestricted surveillance. There is a simple solution to this: the polluter pays principle. Whoever demands a service should also bear the costs for it! This is the only way to limit the covetousness of the authorities, and the privacy of the citizen remains protected. At the same time, it becomes transparent how costly the use of modern technology is. And finally, the discussion about proportionality is conducted in the right proportions.
Statement of the Federal Council
The legislator has regulated the principles of the compensation scheme in the Federal Act on the Interception of Postal and Telecommunications Traffic of 6 October 2000 (BÜPF; SR 780.1). According to its Article 16 paragraph 1, the facilities required for interception are borne by the telecommunications service provider (TSP). For the expenses, it receives appropriate compensation from the ordering authorities for the costs of the individual monitoring. The Federal Council is responsible for regulating the details (paragraph 2).
On 7 April 2004, the Federal Council approved the new ordinance on fees and compensation in the area of telecommunications surveillance and brought it into force on 1 May 2004. The ordinance on fees adheres to the aforementioned guidelines. It is based on the cost structure of the TSP, which was surveyed by an external, independent consulting institute in cooperation with a representative group of TSPs (large, medium and small providers of telephone and/or Internet services). Based on this, an average cost for certain monitoring measures, which are conclusively regulated in the law and ordinance, was determined.
1. the compensation of the full costs of the FDA contradicts the currently valid legal regulation. If the legislator had intended to provide for full compensation of the FDA’s costs, he would have chosen a corresponding wording in Article 16. By choosing the term “reasonable compensation”, it has deliberately refrained from full compensation.
The concept of “adequacy” (of a monetary benefit) occurs in various areas of law (family law with respect to spousal support after divorce; occupational pensions with respect to the amount of pension benefits, etc.). In order to determine the appropriate benefit, all relevant circumstances must be taken into account. In the present case, the public interest in the use of telecommunications surveillance measures for criminal prosecution and the economic interest of the providers in offering a wide variety of telecommunications services are particularly relevant. The cost structure of the providers must also be taken into account. However, care must be taken to ensure that the instrument of telecommunications surveillance is not de facto deprived of its significance as a result of organizational, technical or financial obstacles.
2 The legal regulation clearly states that the costs of the facilities are to be borne by the telecommunications service providers. The basis for payment of the costs of an individual monitoring measure can therefore only be the operating costs. In total, the TSPs were paid approximately CHF 10 million for their services in connection with surveillance measures and information on telecommunications connections in 2002.
3. law enforcement is a legally regulated task of the state, and the surveillance measures mentioned by the interpellant support the work of the law enforcement authorities. In principle, the state also bears the costs of the surveillance measures. With the freedom of the FDA to offer ever new and ever more attractive services in the field of telecommunications, the personnel and financial effort of the law enforcement authorities to monitor the various types of communication is also growing. Therefore, the fact that law enforcement is a governmental task does not exclude that economic entities indirectly share some of these costs.
Incidentally, the assumption of duties in the context of criminal prosecution proceedings without full compensation also applies to citizens. For example, they are paid what is known as “witness money” for appearances as witnesses. It is not calculated according to business principles and therefore does not usually cover the actual costs (loss of work, travel time, etc.). Either it is the witness himself or herself who indirectly bears these costs, or his or her employer. Another example is the account statements of the bank of an accused person requested by the prosecution authorities in a specific criminal case: they are also supplied by the banks free of charge.
4 The obligation of the TSP to provide services for the benefit of the law enforcement authorities in return for appropriate compensation does not constitute an inadmissible interference with the economic freedom of the TSP. On the one hand, all TSPs operating in Switzerland are subject to the obligation to the same extent; on the other hand, the obligation under public law to monitor telecommunications traffic satisfies the requirements of Article 36 of the Federal Constitution concerning restrictions on fundamental rights. The obligation to monitor telecommunications traffic is based on a formal legal foundation (Art. 15 BÜPF), is in the public interest (in particular criminal prosecution) and is proportionate. There is no constitutional basis for an obligation on the part of the state to pay full compensation for encroachments on economic freedom – in contrast to encroachments on the guarantee of property. There can therefore be no question of a violation of economic freedom.
5 As explained in section 1, the amount of compensation paid to the TSP for an individual monitoring measure depends on various criteria, including the TSP’s cost structure. If a TSP forgoes investments, it must work more personnel-intensively, and the degree of coverage of the operating costs in the individual case decreases accordingly. If it invests, it can reduce operating costs and obtain better cost coverage. In addition, DETEC, in cooperation with the TSPs, has issued technical and administrative guidelines based on Article 33 of the Ordinance on the Surveillance of Postal and Telecommunications Traffic of 31 October 2001 (VÜPF; SR 780.11). These define the administrative procedures for traffic between the TSP and the Service for Special Tasks (DBA) and determine the technical interfaces (e.g. configuration of data) between the DBA’s system and those of the TSP. However, this also defines certain specifications regarding the required investments by the FDA.
6 The admissibility and scope of surveillance measures in telecommunications are governed on the one hand by the aforementioned Federal Act on the Surveillance of Postal and Telecommunications Traffic or its implementing ordinance, and on the other hand by the cantonal or federal codes of criminal procedure. The specific purpose achieved with a surveillance measure cannot simply be achieved with another technical instrument. Where the necessity of a surveillance measure is given and the legal requirements are also fulfilled, this procedure is also the only promising way in the context of investigations. The structure of the fee schedule must therefore be based on the legal requirements and should neither open the door to surveillance measures nor allow the necessary measures to fail due to prohibitive costs. In any case, the statistics of recent years do not show the trend feared by the interpellant.