- Motion calls for a clear separation between standard-setting/regulatory tasks and executive law enforcement tasks of the Surveillance Service.
- Aspects of criminal prosecution are to be excluded from the revised Büpf and regulated in the StPO, including government software.
- Federal Council rejects subordination of technical infrastructure to the BPI for the time being; further reviews and dispatch on total revision announced.
- Federal Council leaves open the question of compensation for telecommunications service providers; cost regulations will be examined in depth in the total revision.
Motion Schmid-Federer (10.3831): Büpf revision
Written off on 06/17/2015 in connection with the discussion of Business 13.025.
Submitted text
The Federal Council is instructed to amend the Federal Act on the Surveillance of Postal and Telecommunications Traffic (Büpf) in the course of the planned total revision in such a way that the following points are taken into account:
(1) It must be described which standard-setting, regulatory tasks the monitoring service is to perform without being bound by instructions and which tasks the service performs as an executive organ of law enforcement. A separation into two entities is conceivable.
2. all aspects of law enforcement are to be omitted.
3. the technical infrastructure of the service shall be subject to the Federal Law on Federal Police Information Systems (BPI).
(4) The telecommunications service providers shall be compensated by the Service for the actual legal costs incurred per interception, up to a maximum amount to be determined.
Justification
The total revision of the Büpf met with broad resistance in the consultation process. Nevertheless, a revision is necessary, as law enforcement must be able to monitor as a last resort, even modern communication channels that are not covered by the existing Büpf.
The Büpf is not intended to regulate anything that is regulated elsewhere. The possibilities and processes of criminal prosecution are regulated in the Swiss Code of Criminal Procedure (StPO), including telecommunications surveillance and so-called government software.
Since the new central technical infrastructure of the monitoring service to be created serves the enforcement of a coercive measure and solely the law enforcement authorities, it must be subject to the Federal BPI Act.
Since data domination is not the responsibility of the operators according to Büpf, but of the ordering law enforcement authorities, data protection is governed by the provisions of the StPO, the BPI and any cantonal or federal guidelines.
On the other hand, the law must separate the service’s norm-setting tasks and duties from its purely executive duties, as is customary under the rule of law. Norm-setting must be regulated in such a way that there is planning security for telecommunications service providers and monitoring security for law enforcement. Finances must be regulated in such a way that the costs of the service remain as low as possible, while surveillance is paid for according to the polluter-pays principle.
Statement of the Federal Council
1 The Federal Council proposes that paragraph 1 of the motion be accepted. However, it points out that the independence of the service under current law (Art. 2 para. 2 of the Federal Act of 6 October 2000 on the Interception of Postal and Telecommunications Traffic, Büpf; SR 780.1) concerns the relationship with the FDJP and the Federal Council and not that with the law enforcement authorities. In relation to the law enforcement authorities, the service is independent in the hierarchical sense anyway (i.e., there is no right to issue instructions or the right of the law enforcement authorities to act directly in place of the service). However, the Service is bound by the enforceable surveillance orders of the law enforcement authorities.
The Federal Council proposes that paragraph 2 of the motion also be accepted. The aspects of criminal prosecution are indeed to be omitted from the totally revised Büpf. At the current stage of the ongoing revision work and based on its relevant decision of 23 November 2011, the Federal Council assumes that an explicit legal basis must be created in the Code of Criminal Procedure (CCP; SR 312.0) for the use of government software to monitor telecommunications. In this context, it is also examining whether a corresponding legal basis must be created in the Code of Criminal Procedure for the use of identification, tracking and interception systems such as Imsi-Catchers.
The Federal Council proposes that paragraph 3 of the motion be rejected. It cannot yet commit itself to the proposal contained therein, as it still has to examine the issue as part of the further work on the total revision of the Büpf. This together with related questions that have arisen as a result of its decision of 23 November 2011 to store the surveillance data in the long term in a central IT system at the Federal Postal and Telecommunications Traffic Surveillance Service. It should be borne in mind that even if the service’s data processing system were to be subject to the Federal Act of 13 June 2008 on Federal Police Information Systems (BPI; SR 361), specific legislative provisions would have to be created for this system, just as for the other systems subject to the BPI. The question – not least of an editorial nature – as to which law would better accommodate the necessary provisions should not be prejudged. The Federal Council will comment on these questions in its dispatch on the total revision of the BPI, which is expected to be available in the course of 2012.
The Federal Council proposes that paragraph 4 of the motion also be rejected. It cannot yet commit itself to the proposal contained therein, as it still has to examine the question of the costs associated with the interception of postal and telecommunications traffic – in particular the compensation of telecommunications service providers and the fees for which the law enforcement authorities must pay – in greater depth as part of the further work on the total revision of the Büpf. The Federal Council will also comment on this point in its dispatch.