The federal prosecutor should have access to better surveillance methods in order to spy on criminals, according to the government, which also wants to be able to use spyware such as Trojan horses for particularly serious offences.
Current possibilities for solving serious crimes haven’t kept pace with technological progress, Justice Minister Simonetta Sommaruga said on Wednesday.
“The state cannot afford to leave certain communication channels to criminals,” she said at a media conference in Bern.
Sommaruga said criminals today could, without spending a fortune, employ encryption technology to evade surveillance.
She argued that in order to be able to monitor a conversation over Skype – which allows users to communicate online using a microphone, webcam and instant messaging – law enforcement authorities should be able to use so-called “Government Software”.
These programs are installed unnoticed in computers by police – like hackers. They can then see what the computer user is up to. Trojan horses are software programs which appear useful but in fact contain additional hidden code which allows the unauthorised collection of data.
The “particularly serious offences” for which such spyware would be employed include the financing of terrorism, criminal organisations or child pornography. Preventative surveillance, on the other hand, where there is not reasonable doubt of a crime, has been ruled out.
The government also wants to widen the circle of bodies which have to support an authorised surveillance operation.
At present, only the post office, telecoms operators and internet providers (including email providers) have to help out – in future, operators of chat forums and telecom networks, as well as hotels, hospitals and schools will also have to assist. Schools, however, will only have to tolerate surveillance and not actually carry it out themselves.
Legal situation
Courts currently permit the use of spyware, although the legal situation is controversial.
By the end of 2010, Trojan horses had been used four times by the government – since then, not at all. It’s unknown, however, how often cantons – which have a lot of autonomy in Switzerland – have used them.
In November 2012, the Federal Court ruled that authorities were allowed to tap third-party telephone connections that are called by a wanted person. The decision came after an appeal from the Zurich cantonal prosecutor’s office against a cantonal court ruling.
The prosecutor’s office conducted a criminal investigation in 2010 against a man who was suspected of having planned robberies. They did not know where he was or the telephone connections he used. However, the identity of his girlfriend, who was not subject to investigations herself, was known.
The prosecutor’s office filed a request to keep taps on her telephone for a few months to trace the suspect. The cantonal court refused permission.
The federal court specified that investigators are only allowed to tap third-party connections if there is evidence that the target person is calling the number on a regular basis. Surveillance must be stopped once the number of the suspected person is known, because investigators may then tap the suspect’s phone directly.
Prosecutors also do not have the right to record conversations where the suspect is not taking part, the judges said.