Telecommunications confidentiality and surveillance of telecommunications

Telecommunications confidentiality and surveillance
of telecommunications

The Federal Constitution guarantees the right to privacy, which includes the right to confidentiality of correspondence, post and telecommunications. The Federal Act on the Surveillance of Post and Telecommunications (SPTA) and its implementing ordinances form the legal basis for analysing post and telecommunications for the purpose of investigating serious criminal offences or searching for missing persons. In particular, the law ensures that offenders cannot evade the investigations of the prosecuting authorities by communicating via the internet in encrypted form. The independent Post and Telecommunications Surveillance Service (PTSS) monitors the legally compliant implementation of the SPTA to protect the privacy of the population.

What is telecommunications confidentiality?
Under what conditions can telecommunications be monitored by the authorities?
Does the person I am speaking to on the phone have the right to record our conversation?
I have the feeling that my telephone is being tapped by third parties; what can I do?
Will I be informed about the surveillance?

What is telecommunications confidentiality?

Article 13 of the Federal Constitution guarantees the right to privacy, which includes the respect for correspondence, post and telecommunications (also referred to simply as telecommunications). Individuals have a right vis-à-vis the state to keep their non-public communications private, so that they can exchange their opinions and thoughts without being monitored. In the light of the fundamental right to freedom of expression, it is particularly important to be able to use telecommunications without state surveillance.

Under what conditions can telecommunications be monitored by the authorities?

The Federal Act on the Surveillance of Post and Telecommunications (SPTA) regulates the conditions under which the surveillance is possible. The details are set out in the Ordinance on the Surveillance of Post and Telecommunications (SPTO).

Eavesdropping by an authority may take place if a Swiss prosecution authority has ordered it for the purpose of investigating serious criminal offences based on the Criminal Procedure Code, or if the Federal Intelligence Service has ordered it for the purpose of safeguarding internal and external security in accordance with the Federal Act on the Intelligence Service. Authorisation for surveillance is granted in cases specified in the SPTA. In addition to serious criminal offences, surveillance may also be ordered, for example, in the case of a search for a person who has escaped from prison.

The Post and Telecommunications Surveillance Service of the Federal Department of Justice and Police (FDJP) is the independent service responsible for ensuring that any surveillance of post and telecommunications is conducted lawfully, thus protecting the privacy of the population.

Federal Act on the Surveillance of Post and Telecommunications

Ordinance on the Surveillance of Post and Telecommunications

Will I be informed about the surveillance?

If the surveillance leads to a charge, you will be informed immediately. If it does not lead to a charge, you will be informed subsequently (apart from certain exceptional cases) about the reason, type and duration of the surveillance.

I have the feeling that my telephone is being tapped by third parties; what can I do?

If you have reasonable grounds to believe that your connection is being tapped by unauthorised third parties, you can file a complaint under Article 179bis of the Swiss Criminal Code (eavesdropping and recording of other people's conversations). Your telecommunications provider will inform you of the risks of eavesdropping and intrusion involved in using its services. It will offer or indicate appropriate means of eliminating those risks (Art. 87 OTS).

Art. 179bis (SCC)

Art. 87 Ordinance on Telecommunications Services

Does the person I am speaking to on the phone have the right to record our conversation?

Telephone conversations may only be recorded by one party if the other party has been informed in advance. An exception is made for calls to emergency, rescue and security services. Since 1 March 2004, the recording of telephone conversations in business transactions without prior notification is also permitted in certain cases. Further information can be found under the following link.

Recording of telephone conversations