Interpellation Mörgeli (10.3728): Cost-intensive requirements imposed by the FDJP on private Internet service companies
Written off (28.09.2012)
The draft of the revised Federal Act on the Interception of Postal and Telecommunications Traffic (BÜPF) raises numerous problems from the point of view of state policy and the market economy. For this reason, I would ask the Federal Council to answer the following questions:
1. on the basis of which legal basis did the FDJP order the new electronic interception system ISS even before parliamentary approval?
2. what is the cost of procuring this Interception System Switzerland (ISS)?
3) What will the FDJP do with regard to the ISS that has already been procured if parliament rejects the revised Federal Act on the Interception of Personal Data (BÜPF)?
4. on the basis of which legal basis does the FDJP service Surveillance of Postal and Telecommunications Traffic (ÜPF) require 650 private Internet service providers to monitor e‑mail traffic and Internet telephony in real time with immediate effect?
On what legal basis does the FDJP force hundreds of Internet companies to purchase expensive installations with this request?
6. is the Federal Council aware that with its requirements for Internet service providers it is forcing hundreds of SME businesses to make high investments?
7. what is its position on the Internet service providers’ accusation that the requirements of the Surveillance of Postal and Telecommunications Traffic (ÜPF) service are technically flawed and virtually impossible to implement?
Statement of the Federal Council
The Federal Council strives to achieve a balance between the important concerns of law enforcement, the protection of the fundamental rights of the monitored persons and the interests of the telecommunications service providers within the framework of the principle of legality.
The Interception System Switzerland (ISS) to be procured is a replacement procurement for the processing system LIS (Lawful Interception System) currently in operation, which has reached the end of its service life. The functionality of the ISS system to be procured is the same as that of the system to be replaced, but adapted to current and future technical requirements. Due to this fact, the ISS system to be procured complies with the applicable legal requirements (Federal Act on the Surveillance of Postal and Telecommunications Traffic, BÜPF, SR 780.1) and can therefore be procured and put into operation under applicable law. Of course, it must be possible to use the ISS to meet the additional requirements that the future BÜPF may bring. The ISS is therefore designed in such a way that it could be adapted to new requirements once the revised BÜPF comes into force. However, these adaptations are not the subject of the current procurement project.
2 Parliament has approved a commitment credit of 18.2 million francs for the ISS project (2010 Budget, Vol. 6, Federal Decisions, p. 221, V0200.00 Replacement Lawful Interception System LIS at the FOC), thus it has approved the procurement of the new electronic interception system ISS (see question 1).
3 Since the ISS system is already necessary for the correct implementation of the applicable law (see answer 1), a failure of the BÜPF revision would not affect the project. However, revision-related adjustments to the system would fall by the wayside.
4 The obligations of telecommunications service providers are governed by Article 15 of the Federal Act on Telecommunications Services (BÜPF), which entered into force on 1 January 2002. According to this article, telecommunications service providers must provide the ÜPF service, upon request, with the surveillance data from real-time surveillance requested by the law enforcement authorities, as well as retroactive data. The law does not speak of individual telecommunications technologies, but of the data to be provided. In order to be able to provide this data to the ÜPF service, the telecommunications service providers must have the necessary technical equipment. According to the existing legal foundations (Art. 15 BÜPF; Art. 18 Para. 2 and 26 Para. 2 VÜPF), the telecommunications service providers are obliged to ensure the monitoring of telecommunications traffic from the start of customer operation of a telecommunications service.
5/6 Telecommunications service providers that fall under the scope of the BÜPF are obliged under Article 16(1) BÜPF to procure and implement the equipment necessary for interception at their own expense. This legal obligation has existed since the current law came into force, i.e. for a good ten years. The fact that it is now being adapted to the state of the art was just as predictable as it is necessary in order to be able to carry out effective telecommunications surveillance to combat crime. Incidentally, companies specializing in the field of surveillance technologies offer both small and medium to large-scale solutions for surveillance technologies. With these customizable solutions, the principle of proportionality is maintained.
7 The connection to the LIS system works and has long been implemented with numerous telecommunications service providers. Incidentally, the technical, organizational and administrative guidelines are largely based on the standards of the European Telecommunications Standards Institute, the so-called ETSI standards, which are known to the industry throughout Europe. The guidelines are being developed in close cooperation with the telecommunications service providers and adapted to the new requirements. A new consultation process with telecommunications service providers is currently underway, after which the guidelines will be revised and published.