Motion Romano (13.3199): Framework agreement with telephone companies to reduce monitoring costs
20.03.2015: Written off because pending for more than two years.
Submitted text
The Federal Council is instructed to enter into negotiations with the three largest telephone companies (Swisscom, Sunrise, Orange) with a view to concluding a framework agreement governing the billing of services for the monitoring of e‑mail and telecommunications traffic for all law enforcement agencies. The aim is to have standardized rates that cover ongoing costs and are politically defined.
Justification
The monitoring of telephone calls and of data transmissions on the Internet is a key tool for law enforcement authorities at both cantonal and federal level. Data traffic is increasing, and those who conduct criminal business no longer have to physically move from place to place, but can use the available technologies. Therefore, law enforcement authorities must be able to control these technologies, especially if other investigative measures have been unsuccessful or are not possible (Art. 269ff. of the Code of Criminal Procedure). Requests to Swisscom, Sunrise and Orange for information on such data flows have increased sharply. The companies charge per case and at market prices. Accordingly, the costs are very high, which often results in the authorities discontinuing their investigations for financial reasons. In addition, it is to be feared that in certain cases criminal proceedings will not even be initiated due to the unfavorable cost-benefit ratio. Establishing a dynamic IP address, for example, costs 250 francs. If the data flow over all channels (fixed network, cell phone and Internet) has to be monitored for an investigation, this costs around 20,000 francs. In total, over 100 million francs were spent throughout Switzerland in 2012. It is in the interest of the state to provide law enforcement agencies with all the tools they need to act efficiently and quickly. It must not be the case that criminal acts go unpunished simply because the costs of investigation are too high. Since the number of requests for information sent by the authorities to the telephone companies is very high today, it seems reasonable and necessary to conclude a framework agreement that regulates the approaches and the costs in an acceptable and reasonable way. The conclusion of a contract between the federal government and the telephone companies that includes flat rates, global budgets and cost-covering rates that take into account the effective costs will help the state in its fight against crime.
Statement of the Federal Council
Under current law, telecommunications service providers (TSPs) must carry out surveillance orders, but in return they receive “appropriate compensation for the costs of the individual surveillance” (Art. 16 para. 1 of the Federal Act on the Surveillance of Postal and Telecommunications Traffic, Büpf; SR 780.1). The Federal Council has set the amount of compensation according to the nature of the individual services in the Ordinance on Fees and Compensation for the Interception of Postal and Telecommunications Traffic (SR 780.115.1). The law only gives the right to an appropriate compensation, but not to a full compensation that covers the costs. Market prices, on which the motion is based, are therefore irrelevant. The compensation must first be paid by the authority that ordered the telecommunications interception, i.e. mostly by a public prosecutor’s office, with an average of 96 percent of the interceptions ordered annually by cantonal public prosecutor’s offices and 4 percent by the Office of the Attorney General of Switzerland. As procedural costs, the compensation paid is imposed on the accused person in the event of a conviction (cf. Art. 422f. and 426 of the Code of Criminal Procedure; SR 312.0).
In the opinion of the Federal Council, this regulation has proven its worth:
- It ensures that TSPs also make a contribution to the investigation of criminal acts by entitling them only to appropriate compensation, not full compensation. The TSPs make an additional contribution by having to provide the facilities necessary for monitoring at their own expense.
- It ensures that most of the costs of supervision are charged to those who caused them (the ordering authority or the convicted person).
- It leads to equal legal treatment of all FDAs, regardless of their size.
For this reason, the Federal Council intends to retain this regulation in substance and does not envisage any change within the framework of the total revision of the Büpf (cf. Dispatch on the Büpf of 27 February 2013; BBl 2013 2683). However, this does not mean that the fees and compensation will remain the same: Rather, they are to be reviewed individually upon the entry into force of the amended law and, if necessary, adjusted on the basis of the results of the cost survey and taking into account the international legal comparison.
The motion demands that the Federal Council agree on a lump-sum compensation with the three largest FDAs. Such an approach is neither possible under current law nor under the regulation proposed by the Federal Council in the draft for the total revision of the Büpf. It is true that the necessary legal basis could be created. However, at least the following difficulties are likely to arise:
- The federal government would have to conduct the negotiations with the TSPs; however, because ultimately the cantons would have to pay for most of the services, they would also have to be involved in the negotiations;
- it may be difficult to determine the appropriate level of lump-sum compensation because the volume and type of monitoring can change significantly at individual TSPs, which precludes basing it on prior-year figures;
- new legal regulations would be needed in the event of the failure of negotiations with the three large TSPs, as well as in the event of the failure to reach an agreement on the division among the cantons.