Spy programs not only permit the recording of all incoming and outgoing e-mails but also the recording of what appears on screen and the detailed recording of all key strikes and surfing tours. Employers who use this means to check on their employees violate statutory provisions on the protection of privacy and thus commit a criminal offence.
Surveillance programs are normally used without the knowledge of the persons under observation and permit the permanent and detailed monitoring of all the activities that an employee carries out at his electronic work station. In particular, they allow the examination of e-mails by recording these and then sending them on to a third party address. Spy programs also have a function that "photographs" or "copies" the screen with its entire content (e.g. Internet pages) at regular intervals (recurrent screenshots). In addition, these programs are capable of recording every strike made on the keyboard as well as every password that has been entered, and can indicate any active applications, access the hard disk of the PC, and listen to audio files that are being played, etc. Surveillance programs make it possible to store recordings made and information obtained. The further processing of the data, e.g. by disclosing the data to a third party is also possible. It amounts to a high-performance system for monitoring the conduct of employees in workplace and therefore constitutes a violation of the prohibition of the surveillance of other persons' activities as well as the principle of good faith. The recording, monitoring, analysis, storage and processing of information and activities of any nature on the computer without the consent of the person affected is, in our opinion, a breach of secrecy and privacy through the use of a recording device in terms of the Penal Code. Equipped with surveillance and recording functions, the PC becomes a recording device. The private domain in the workplace is protected both under employment law and by the constitutional principle of the secrecy of telecommunications (cf. BGE 126 I 50). Due to the multitude of functions and programming possibilities that surveillance programs provide, the invasion of the privacy of an employee can in certain circumstances be even more far-reaching than in the case of the use of a video camera. The Swiss Federal Supreme Court has yet to issue any judgements on the use of electronic surveillance software.
[July 2003]