Submitted text
With the current structural changes, namely digitalization, the circumstances in the telecommunications sector are changing. New legislative measures must therefore be provided to adapt to these unstoppable developments.
Social networks such as Facebook and Twitter are an integral part of the everyday lives of the Swiss. The networks provide services for Swiss consumers and are therefore digitally located on our national territory. Nevertheless, they do not necessarily have an independent legal status in Switzerland. This situation is problematic. Indeed, in cases of cyberbullying, defamation or in other investigations, the judiciary comes up against limits when it comes to obtaining data for proceedings. This is evidenced by Federal Court decision 1B_185/2016 in a case between the Vaudois public prosecutor’s office and Facebook Switzerland. According to this decision, an – all too slow – procedure of international mutual legal assistance in criminal matters is needed to obtain the data necessary for the investigation.
In addition, cases of planned obsolescence have recently caused a stir. Examples include Epson and Apple. Despite all this, it is difficult for affected consumers – individually or in groups – to file a lawsuit because Apple, for example, does not have a branch in Switzerland.
Therefore, I ask the following questions:
1. How does the Federal Council intend to ensure the proper functioning of justice when a social network is affected by a lawsuit? How does it intend to protect Swiss consumers from the technology giants?
2. is a revision of the Telecommunications Act or the Federal Data Protection Act planned to solve the problem?
3. shouldn’t large service providers such as Apple and Facebook be required to establish legal representation in Switzerland?
4. data do not stop at national borders. In view of this, have discussions been initiated at the international level?
Statement of the Federal Council of 23.5.2018
1. – 3. In its statement on the Mon. 16.4082 Levrat (Facilitating law enforcement authorities’ access to data from social networks) stated that it considers the situation regarding law enforcement on the Internet to be unsatisfactory and is looking for practicable and justiciable solutions. However, the obligation proposed there that a company abroad would have to establish representation in Switzerland and provide the required data in criminal proceedings could not be enforced.
If, on the other hand, such companies were to designate a representation or a domicile for service in Switzerland, this could facilitate communication with the company abroad for both authorities and consumers in Switzerland. Admittedly, the caveat of lack of enforceability would also apply here. However, it can be assumed that companies would be more likely to cooperate due to the lower intensity of intervention than would be the case with an obligation to surrender data stored abroad. The Federal Council therefore also proposes the acceptance of Mo. 18.3379 of the Legal Committee of the Council of States and Mo. 18.3306 Glättli (Strengthening legal enforcement on the Internet through a mandatory domicile of service for large commercial Internet platforms), which are aimed in this direction. Whether these motions can be implemented by amending one of the laws listed under question 2 or another law can only be determined after a detailed examination.
In parallel, however, solutions must continue to be sought within the framework of international cooperation. The Council of Europe’s Cybercrime Committee is currently working on proposals to enable law enforcement authorities to obtain electronic data abroad within a reasonable period of time. Switzerland is actively involved in this work. Discussions are also taking place with the EU and various EEA states with the aim of simplifying mutual legal assistance in civil matters.