Amendment to the Surveillance Act planned Federal government targets Threema and Protonmail
The Swiss government is planning to amend the Surveillance Act. This could have major consequences for popular services such as Threema and Protonmail. Critics suspect that the FDJP wants to use this to undermine past defeats in court.
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- At the end of January, the Federal Council proposed a revision of the law on the surveillance of postal and telecommunications traffic (BÜPF).
- Critics see this as a disguised attempt to impose stricter obligations on services such as Threema and Protonmail, which attach great importance to data protection.
- Until now, these popular services have only had to provide a small amount of data to the authorities - but this could change with the amendment to the law.
For state surveillance to work, telecommunications companies must cooperate with the state. The federal government is therefore legally obliging companies such as Swisscom, as well as smaller internet service providers, to hand over data. Some companies are compensated for their support.
According to the Federal Council, the cooperation of telecommunications providers is "essential for the effective monitoring of telecommunications traffic". Which data the companies have to provide depends on their legal classification.
But this is precisely where the problem lies. Time and again, there are disputes about which provider has to hand over how much data. This has already been the case with Threema and Protonmail.
Threema won before the Federal Court in 2021
Threema is a messenger like Whatsapp based in Pfäffikon in the canton of Schwyz, while Protonmail is an email service from Geneva. Both attach great importance to strong data protection - and have so far been able to fend off stricter surveillance.
In the case of Threema, the Federal Supreme Court even ruled against the Federal Department of Justice and Police (FDJP) in 2021. It ruled that Threema was not a telecommunications service provider (TSP) and therefore had to provide less data to the authorities. So far, Protonmail has also been able to defend itself against this classification.
Now the Federal Council is making a new attempt. At the end of January, it proposed a revision of the law on the surveillance of postal and telecommunications traffic (BÜPF). The service providers are to be reclassified. According to the Federal Council, this change would enable "a more balanced gradation of obligations".
However, critics see this as a disguised attempt by the FDJP to impose stricter obligations on services such as Threema and Protonmail.
New categories, higher obligations?
The law currently distinguishes between telecommunications service providers (TSPs) and providers of derived communication services (DACS). TSPs, including Swisscom, Sunrise and Salt, have the greatest obligations. They must monitor in real time, provide extensive user data and store data for six months.
Threema and Protonmail are currently considered AAKDs - thanks in part to the legal cases they have won - and therefore have few obligations. However, it is precisely this category that the federal government wants to split into three levels: minimal, reduced and full obligations. According to the Federal Council, this should lead to an "alignment between FDAs and AAKDs of comparable size and economic importance".
For critics, this is an attempt to make Threema and Protonmail even more obliged to provide data - despite defeats in court.
Confederation denies allegations
Martin Steiger, a lawyer specializing in law in the digital space and spokesperson for the Digitale Gesellschaft association, clearly criticizes the authorities: "Ultimately, the procedure is always the same. To put it mildly, the security authorities in Switzerland are straining the existing legal framework when it comes to surveillance and are counting on a normally benevolent jurisdiction. If, exceptionally, this does not turn out to be benevolent, they lobby for the legal basis to be extended." This is also the case here.
The Confederation disagrees Jean-Louis Biberstein, deputy head of the responsible Post and Telecommunications Surveillance Service (ÜPF), emphasizes that it is not possible to specifically address individual companies. However, the revision should above all create legal certainty and clearly implement court rulings. It is also important that there will still be "no obligation to remove end-to-end encryption".
Threema does not yet wish to comment specifically on the revision and is considering legal action. Protonmail will also not comment until later. However, the company has already written that it considers the federal government's proposals to be "extremely problematic".
The consultation process for the partial revision of the BÜPF will continue until May 6.