- The new Vüpf forces all telecommunications providers, regardless of their size, to introduce a technical real-time monitoring solution.
- The implementation costs (~ CHF 100,000) are relatively high for SMEs and threaten their economic existence.
- The Federal Council is planning a complete revision of the Büpf, in which differentiated exemptions or cooperation obligations for SMEs will be examined.
- Under current law, investment costs are to be borne by the providers; economies of scale through compensation are not envisaged.
Interpellation Reimann (12.3868): SME telecommunications providers and real-time monitoring
26.09.2014: written off
Submitted text
In Switzerland, there are not just a handful of large telecommunications providers. On the contrary, there are several hundred telecommunications providers, most of which are small SMEs.
With the entry into force of the new Vüpf on January 1, 2012, SME telecommunications providers now face massively higher costs for real-time monitoring. Many are even threatened in their existence by the new regulation.
Although the Council of Europe’s Cybercrime Convention stipulates that telecommunications providers must either implement a technical solution or can be forced to cooperate for real-time monitoring (Art. 20 para. 1b), the Federal Council has only opted for the first variant in the Vüpf: Article 25 paragraph 4 and Article 17 paragraph 4 of the Vüpf force telecommunications providers to implement a technical solution, regardless of their size. A cooperation solution is not envisaged.
However, the costs of a solution according to the first variant amount to around 100,000 francs. The smaller a telecommunications provider is, the fewer real-time monitoring cases it has to handle. For many providers, experience shows that there are even no cases at all. However, the costs are the same for all providers and, above all, they are incurred regardless of the number of monitoring cases.
This raises the following questions:
1. how is this regulation compatible with the Federal Council’s objectives for an SME-friendly policy?
2) Does the Federal Council find it proportionate that the small providers have to bear exactly the same costs as the large ones?
(3) Why does the federal government’s regulation not take into account the economies of scale that are lacking among small providers?
4. are exceptions for SME providers within the meaning of Article 20(1b)(ii) of the Cybercrime Convention also planned for the revision of Büpf?
5 The current Vüpf also does not yet take SME providers into account. Wouldn’t the current Vüpf have to be adapted accordingly to comply with the principle of proportionality?
Statement of the Federal Council
Small and medium-sized enterprises (SMEs) account for 99.7 percent of market-based companies in Switzerland and employ two-thirds of the workforce. The Federal Council is aware that SMEs suffer proportionately more from administrative and legal burdens and often have difficulties with financing. In the interest of strengthening Switzerland as a business location, particular attention must therefore be paid to them, especially when shaping the legal framework.
The current Federal Law of 6 October 2000 on the Interception of Postal and Telecommunications Traffic (Büpf) makes no distinction between small and large telecommunications service providers (TSPs). Consequently, all TSPs are equally obliged to carry out telecommunications surveillance. Accordingly, the current Ordinance of the Federal Council of 31 October 2001 on the Interception of Postal and Telecommunications Traffic (Vüpf; SR 780.11) does not provide for such a distinction either.
In March 2006, the Federal Council initiated the total revision of the Büpf. It will soon adopt a corresponding dispatch. On this occasion, it will also comment on the question of whether certain TSPs can be exempted in whole or in part from their legal obligations. In particular, it will consider whether TSPs that provide services of minor economic importance can be exempted from certain legal obligations and instead, for example, be subject only to a duty of cooperation. It will make its decision in full knowledge of the situation of SMEs and taking into account the sometimes divergent interests of economic freedom, public safety and the federal financial budget. Following the total revision of the Büpf, the Vüpf will ultimately also have to be adapted and, if necessary, provide for a differentiated regulation for SMEs.
The current Büpf further stipulates that the costs of establishing monitoring readiness (investment costs) are borne by the FDA. For the implementation of a specific monitoring, they receive compensation intended to cover the related expenses (operating costs). It was not the intention of the legislator that investment costs be amortized through compensation. Consequently, even large TSPs should not benefit from an economy of scale in the sense of amortization of investment costs through compensation for carrying out numerous monitoring activities.
The costs of establishing monitoring readiness depend not only on the services offered by a TSP, but also to a large extent on the technical and organizational solution it chooses. Under current law, TSPs already have the option of joining forces for the acquisition and operation of monitoring infrastructure or outsourcing monitoring to specialized companies in order to fulfill their obligations more cost-effectively.
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