The Swiss Federal Council has published the partially revised implementing ordinances for the Federal Act on the Surveillance of Postal and Telecommunications (SPTA) for consultation until 23 May 2022. The main goals of the current revision are adaptations to the possibilities of 5G technology. Not yet addressed is the long announced and eagerly awaited redefinition of those providers obliged to cooperate in surveillance.
What It's About - and What It's Not (Yet) About
With the entry into force of the completely revised Federal Act on the Surveillance of Postal and Telecommunications ("SPTA") in 2018, the surveillance law was adapted to the technological development in communication. The current SPTA has considerably expanded the circle of communication service providers subject to surveillance and information. In practice, there have repeatedly been delimitation difficulties between the individual providers covered, especially telecommunications service providers ("TSPs") and providers of derived communication services ("PDCS", cf. on this delimitation also our article from 2018 "New Surveillance and Information Obligations for Communication Service Providers").
Most recently, the Swiss Federal Supreme Court and the Swiss Federal Administrative Court had restrained the Swiss Post and Telecommunications Surveillance Service ("Surveillance Service") in its attempts to always further expand the circle of those obliged to cooperate (cf. our article on the Swiss Federal Supreme Court judgment 2C_544/2020 of 29 April 2021 regarding Threema, as well as our article on the Swiss Federal Administrative Court judgment A-5373/2020 of 13 October 2021 regarding Proton).
Even before these judgments, it was foreseeable that the obligations to cooperate would have to be redefined: Following the revision of the Swiss Telecommunications Act (TCA) of 22 March 2019, the Federal Council should in future define the categories of those obliged to cooperate (in particular FDA and AKKD) separately from the definition in the TCA (cf. Art. 2 para. 1 lit. b and para. 2 revSPTA, not yet in force).
However, the implementing ordinances now submitted by the Swiss Federal Council do not yet address this (re)categorisation, which is important in practice – according to the Explanatory Report of 16 February 2022, the consequences of the Threema judgment in particular should first be analysed more thoroughly. At the same time, the Swiss Federal Council considers the provisions on adapting the ordinances to 5G technology to be so urgent that they need to be enacted promptly. The Swiss Federal Council is therefore splitting the draft ordinances into two partial revisions: The implementing ordinances, which are now open for consultation, contain all provisions that do not concern the categorisation of those providers obliged to participate.
The Main Changes
The revision of the ordinance is intended to adapt the SPTA to the technical developments that have taken place since 2018. Specifically, 5G technology makes it necessary to define additional types of information and surveillance in order to enable the Surveillance Service to carry out surveillance at the current level.
Firstly, (three) new types of information are to be created for the purpose of querying longer-term and short-term identifiers (addressing elements, device numbers, subscriber numbers, etc.). These include (1) the query of the time of the last access-relevant activity of an e-mail service in order to determine when a communication process has been completed, (2) information on the last access-relevant activity of another telecommunications or derived communications service and (3) information on neighbouring networks for telephony and multimedia services in order to solve identification problems which occur when the telephone number is forged or unknown.
In addition, (four) new types of surveillance are to be created, with which in future the exact position of a terminal device can be determined once or repeatedly (up to now, only the approximate position could be determined, for example, in an emergency search for a missing person or in real-time surveillance).
The draft revision also contains numerous detailed provisions, e.g. also clarifications of existing monitoring obligations, including the beginning (at the earliest six months before receipt of the order) and end (time of receipt of the order) of retroactive monitoring. Furthermore, individual provisions of the Ordinance on Fees ("GebV-ÜPF") and the Ordinance on the Processing System for the Surveillance of Postal and Telecommunications Traffic ("VVS-ÜPF") as well as the Ordinance of the FDJP on the Implementation of the Surveillance of Postal and Telecommunications Traffic ("VD-ÜPF") are to be amended. It should be emphasised that within the framework of these adjustments, the deadlines for the provision of information in the VD-ÜPF are to be shortened from the current one working day to six hours and from the current two working days to one working day for smaller companies that are obliged to cooperate. In practice, the previous deadlines have proven to be too long for the criminal prosecution authorities.
Effects on Parties Obliged to Cooperate
The higher density of information to be provided as foreseen by the proposed ordinances and the resources to be created for this, will undoubtedly lead to additional expenditure on the part of the providers who are obliged to cooperate.
However, the second revision package, which is currently still pending, concerning the (re)categorisation of those obliged to cooperate according to the SPTA, is likely to be the subject of controversial discussion. In particular for providers of OTT services, this second part, i.e. the new description at ordinance level of TSP and PDCS obliged to cooperate, will be of very far-reaching practical significance.
The delayed clarification of the definition of providers obliged to cooperate may prove to be problematic, as the future addressees of the currently discussed new regulation remain unclear. For providers in the border area of the previous definitions of TSP and PDCS, an early clarification of the connecting criteria under the SPTA and the ordinances would be desirable.
Further Information:
- Consultation documents on the revision package of ordinances to the SPTA (Part 1) (German);
- Explanatory Report of the Swiss Federal Council of 16 February 202 (German);
- Dispatch of the Swiss Federal Council of 27 February 2013 on the SPTA (German);
- Dispatch of the Swiss Federal Council of 6 September 2017 on the TCA revision (German);
- Leaflet of the Surveillance Service on the demarcation TSP and PDCS of 26 July 2018 (German);
- (new) OFCOM guide on registration as TSP of 18 March 2021 (German)
Authors: Delia Fehr-Bosshard, Jonas D. Gassmann
