Submitted text
14.305, “Finished with anonymous calling for demonstrations and large-scale events without assuming responsibility,” could be implemented at best.
Statement of the Federal Council
The Bern initiative calls for IT addresses to be disclosed to the police authorities by court order as a preventive measure, i.e. before a crime is committed. This should enable the police to identify those who make anonymous calls on the Internet, so that they can be held accountable as de facto organizers and held responsible in the event of damage.
The Confederation has powers in the fields of postal and telecommunications law and criminal and penal procedure law (Art. 92 para. 1 and Art. 123 para. 1 of the Federal Constitution); the Confederation’s power to legislate on the possible implementation of the present demand can be derived from these constitutional norms.
Already today, subject to compliance with the conditions set out in the Swiss Code of Criminal Procedure (CCP; SR 312) and based on the Federal Act on the Interception of Postal and Telecommunications Traffic (Büpf; SR 780.1), subscriber identification can be ordered if a crime is committed via the Internet (e.g. incitement to commit crimes, in particular acts of violence pursuant to Art. 259 of the Criminal Code; SR 311.0). In addition, the Federal Act on Measures to Safeguard Internal Security (Art. 13 para. 1bis; SR 120) allows the federal intelligence service to elicit addressing elements and identify these participants if the calls originate from a violent extremist or terrorist milieu.
However, the Federal Council does not consider the principle of proportionality to be observed if the identity of the anonymous persons is disclosed and their call for demonstrations or other large-scale events does not contain any incitement to commit crimes or acts of violence: The call for an unauthorized demonstration or gathering alone is not a criminal offense under the Criminal Code and does not per se constitute a threat to public safety. If public life is spontaneously disrupted at an event and participants and passers-by are threatened or injured, the initiators of the event cannot be assumed to be jointly responsible under criminal and civil law without further ado. Thus, the declared goal of the measure, to be able to legally prosecute the initiators of an out-of-control event identified in this way, is hardly feasible. Also, the identification of participants according to Büpf (or StPO) presupposes the suspicion of the law enforcement authorities that a crime has been committed; the disclosure of this information to the police for purely preventive purposes is therefore not permissible. For the Federal Council, there is no situation recognizable in which the identification of participants for the purpose of a preventive approach to initiators of assemblies would represent a suitable instrument to prevent spontaneous excesses of future participants. Providers based abroad would also face additional difficulties in enforcing such a regulation on participant identification. Finally, the envisaged regulation would also have a prohibitive effect, which would represent a considerable encroachment on the constitutionally guaranteed freedom of assembly.
For the above reasons, the Federal Council proposes that the postulate be rejected.
Should this nevertheless be adopted, it must be taken into account that the cantons must be involved in this case. The adoption of a report would therefore be possible in autumn 2015 at the earliest.