BÜPF: What Would Change Under the Revised Law, and What Remains Unchanged

This page concerns the revision of the Swiss surveillance law best known under the German acronym “BÜPF”, which stands for “Bundesgesetz betreffend die Überwachung des Post- und Fernmeldeverkehrs” (federal law concerning surveillance of postal communications and telecommunications), as adopted by the Swiss parliament on March 18, 2016. The deadline for demanding a referendum is July 7, 2016.

Wiretapping

While so far it was only telecommunications providers that had to cooperate with state surveillance, under the proposed revised law even private people and associations have to tolerate Internet wiretapping on their premises, mailservers, etc.

The list of offenses which may (if there is a strong suspicion that one of these offenses has been committed, if “the seriousness of the offense justifies surveillance”, and if “investigative actions have been unsuccessful or the inquiries would otherwise be futile or disproportionately more difficult”) be investigated by means of wiretapping is long and it remains largely unchanged. The only substantive changes are that article 220 of the criminal code on abduction of minors and article 33(2) of the weapons law on illegal trade in weapons have been added to the list.

Trojans (“GovWare”)

While the current law does not foresee the use of trojans, the proposed revised law foresees the use of trojans for purposes of surveillance of encrypted communications for a somewhat shorter list of offenses, but otherwise under the same conditions as are imposed for traditional wiretapping. The list of offenses which could under proposed revised law be investigated by means of trojans includes not only the most serious crimes like rape and murder, but also many less serious offenses including theft and even just the mere possession of film or video recordings in which “acts of extreme violence against persons or animals are portrayed, without reasonable cultural or scientific grounds therefor, in a way that seriously offends basic human dignity”.

There are many serious reasons against allowing the state to use trojans. For instance: If the state wants to use trojans, it needs to purchase security vulnerabilities on a black market, thereby creating a legal black market and in effect using tax money to discourage the reporting of security vulnerabilities to vendors of software, mobile telephones etc. This endangers everyone.

IMSI-Catcher (“Stingray”) Surveillance

While the current law does not foresee the use of IMSI-Catchers, the proposed revised law allows it.

For a discussion of this concern see Laura Tribe's article “What the heck is a Stingray? (And what does it have to do with my privacy?)

Data Retention

Data retention of communications metadata for six months remains unchanged, with no regulation to force storage of such data only in Switzerland.

Since the regulation regarding data retention remains unchanged in the proposed revision of the law, it is unaffected by the outcome of a referendum vote. The Swiss practice of data retention is however being challenged in a lawsuit organized by Digital Society Switzerland.

One of the concerns about storage of “data retention” communications metadata outside Switzerland is that for data stored in foreign countries, the laws of those countries would apply e.g. in regard to access to the data by intelligence agencies of those countries.

References to More Detailed Information

Information on supporting the referendum against the surveillance law BÜPF is available here.

Assessment by Digital Society Switzerland: BÜPF 2.0: Schlecht ist nicht gut genug (German).

Information provided by the Swiss government: German, French, Italian.

Text of the current law: German, French, Italian.
Text of the proposed revised law: German, French, Italian.

Relevant proceedings of the Swiss Parliament (mostly in German, partly in French).

List of offenses justifying wiretapping and the use of trojans:


The person responsible for this website is Norbert Bollow, president of Digital Society Switzerland and co-convenor of the Just Net Coalition, in personal capacity. All of the text on this website may be freely re-used under the terms of the Creative Commons Attribution 4.0 International (CC BY) license. This grant of permission does not apply to video content. As attribution, please include a link to the source webpage on my3.ch.