Susan Freiwald & Sylvain Métille, Simply More Privacy Protective: Law Enforcement Surveillance in Switzerland as compared to in the United States
Comment by: Stephen Henderson
Workshop draft abstract:
Calls for reform of the American laws governing electronic surveillance have heightened as the principal federal law, the Electronic Communications Privacy Act (“ECPA”), has approached its twenty-fifth birthday this year. Passed in 1986 to bring communications surveillance into the electronic age, the ECPA has not been meaningfully updated since the advent of the World Wide Web. Courts currently disagree over whether the statute even applies to surveillance using mobile technology, years after cell phones have become ubiquitous in American’s lives. Switzerland, by contrast, has recently updated its laws to cover surveillance technology. In January of 2011, the Swiss enacted a brand new statute, the Swiss Criminal Procedure Code (CrimPC). Substantively, CrimPC imposes similar procedural requirements on law enforcement agents’ use of a variety of investigatory techniques. That nearly uniform treatment stands in stark contrast to the ECPA, which uses a complicated set of categories and rules to make surveillance law in the United States exceedingly difficult to understand and apply. More importantly, Swiss law precludes the use of surveillance techniques not authorized and regulated by CrimPC, while in the United States, a tremendous amount of what the Swiss consider to be surveillance takes place outside the confines of the applicable surveillance laws.
Even if Congress were to amend the ECPA by passing the most privacy protective of the current bills proposed, resulting U.S. law would achieve neither the uniformity nor all the privacy protective features of CrimPC. In short, Swiss law involves judges in many more types of surveillance and in a much more active way than any of the current proposals in this country would do. Swiss law also requires, as U.S. law does not and would not even after amendment, that clear notice must be given in almost all cases to those targeted by surveillance, once done.
This paper describes the passage of CrimPC and its key provisions, which govern the surveillance of mail and telecommunications, collection of user identification data, use of technical surveillance equipment, the surveillance of contacts with a bank, use of undercover agents and the surveillance through physical observation of people and places accessible to the general public. It contrasts those provisions with current U.S. law. The discussion puts the proposals for U.S. law reform in perspective, and sheds light on two radically different approaches to regulating law enforcement surveillance of communications technologies.