Submitted text
The Federal Council is instructed to draft an amendment to the Federal Act on Data Protection, the Telecommunications Act or another suitable law with the following claim: Social networks that target Swiss consumers with their services and process personal data in the process should have a representative in Switzerland that can directly transmit the data required for the proceedings to the Swiss law enforcement authorities without the authority concerned having to apply for international mutual legal assistance in criminal matters.
Justification
In its report in response to the postulate 11.3912 the Federal Council commented on social networks as follows: “Based on previous experience, no major regulatory gaps jump to mind in current Swiss law.” Unfortunately, recent case law shows that the situation has changed. In the Federal Court decision 1B_185/2016, 1B_186/2016 and 1B_188/2016 of November 16, 2016, the Federal Court ruled in favor of Facebook Switzerland to the detriment of the Vaudois public prosecutor’s office, which had demanded the surrender of users’ personal data in the context of criminal proceedings. In fact, Facebook Switzerland is only responsible for marketing issues, does not have any data and does not have access to it. The public prosecutor’s office must therefore contact Facebook Ireland by means of an international request for legal assistance (Facebook Ireland holds the data of Swiss users). This is a lengthy and tedious process with an uncertain outcome.
This situation is unsatisfactory. Social networks like Facebook, which offer their services to Swiss consumers, are active in Switzerland without having a branch here. They must therefore be able to be held accountable or cooperate with the judiciary just like any other natural or legal person.
The case that Belgium brought against Yahoo Inc. and won (cf. judgment of the Belgian Court of Cassation of December 1, 2015) shows that it is entirely possible to oblige providers of Internet services to cooperate with the national judiciary, even in states where they have no representation, or – as in the case of Facebook Switzerland against the Vaudois public prosecutor’s office – even if the representation does not have access to the users’ data.
Statement of the Federal Council of 15.2.2018
The motion requires that internationally active social media companies must have a representative office in Switzerlandif they offer services to Swiss consumers and process their personal data. This representation should be able to provide data to the Swiss authorities in criminal proceedings without the need for a request for mutual legal assistance to another state.
As far as can be seen, there are no models in other countries for a model such as the one proposed in the motion.. The Belgian case mentioned in the motion is not transferable to the request of the motion: The request was in fact sent by the Belgian law enforcement authorities directly to Yahoo! Inc. (USA), as the company had no representation in Belgium. In another case, Microsoft Corporation (USA) could not be required by the American authorities to hand over emails stored in Ireland because of the territoriality of the laws. However, the same court decision notes that this situation is unsatisfactory.
The Federal Council also considers the current situation unsatisfactory and is looking for practicable and justiciable solutions. However, it does not consider the path proposed by the motion to be promisingThe obligation that a company whose social media offering can also be used from Switzerland would have to establish a representative office in our country could hardly be enforced. In addition, a social media company with a representative office in Switzerland could be obliged to hand over data if necessary. However, if the data were stored abroad, such an obligation could not be enforced directly by public authorities.. In this case, too, the data would have to be requested by means of mutual legal assistance.
In line with the cross-border orientation of social media, solutions must be sought primarily within the framework of international cooperation. The aim is not to circumvent mutual legal assistance unilaterally, but to improve and accelerate cooperation. Efforts to this end are underway at the international level. The Cybercrime Committee of the Council of Europe, to which countries such as the USA, Japan, Canada and Australia also belong, is working on proposals to enable law enforcement authorities to obtain electronic border or traffic data abroad within a reasonable period of time. Switzerland, together with other signatory states, is working hard to achieve a practical solution within the framework of the Cybercrime Convention.
The Federal Council is thus already in the process of examining measures for faster data handover in an open-ended manner, carefully taking into account the principles of state sovereignty and territoriality as well as mutual legal assistance in criminal matters and data protection.