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THE SWISS MODEL Susan Freiwald † & Sylvain Métille ††

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THE SWISS MODEL Susan Freiwald † & Sylvain Métille †† REFORMING SURVEILLANCE LAW: THE SWISS MODEL Susan Freiwald † & Sylvain Métille †† ABSTRACT As implemented over the past twenty-seven years, the Electronic Communications Privacy Act (“ECPA”), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law, CrimPC, regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This Article compares the two approaches and argues that recent proposals to reform ECPA in a piecemeal fashion will not suffice. Instead, Swiss CrimPC presents a model for more fundamental reform of U.S. law. This Article is the first to analyze the Swiss law with international eyes and demonstrate its advantages over the U.S. approach. The comparison sheds light on the inadequacy of U.S. surveillance law, including its recurrent failure to require substantial judicial review, notify targets of surveillance, and provide meaningful remedies to victims of unlawful practices. Notably, through judicial oversight and the requirement that surveillance practices be first approved by the legislature, the Swiss significantly restrict several law enforcement methods that U.S. law leaves to the discretion of the police. This Article explains the differences in approach as stemming from the greater influence of international human rights law in Switzerland and the Swiss people’s willingness to engage in a wholesale revision of their procedural law. In the United States, the courts and Congress have struggled to establish appropriate surveillance rules, as evidenced by recent controversial judgments in the courts and congressional hearings on ECPA reform. In the wake of recent disclosures about massive NSA surveillance programs that have relied on both foreign and domestic surveillance, U.S. citizens have grown increasingly concerned about the excessive use of new surveillance technologies to gather information about their private communications and daily activities. This Article analyzes the Swiss approach to domestic electronic surveillance, which, if adopted here, would significantly improve our laws. © 2013 Susan Freiwald & Sylvain Métille. † Professor of Law, University of San Francisco School of Law. I thank research librarian John Shafer and research assistants Sydney Archibald, Amy Leifur Halby, Everett Monroe, and David Reichbach for their valuable help. Josh Davis, Jim Dempsey and Judge Stephen Wm. Smith also contributed significantly to my thinking about this paper. †† Doctor of Law and attorney at the Swiss bar, Lecturer, University of Lausanne, Faculty of Law and Criminal Justice and University of Fribourg International Institute of Management in Technology, Switzerland. This Article was mainly written during my time as a visiting scholar at the Berkeley Center for Law and Technology, University of California, Berkeley, School of Law. I thank research librarian Jean Perrenoud for his valuable help. We appreciate the comments made by participants at the Privacy Law Scholars’ Conference in June 2012, where we presented a draft of this paper: Bryan Cunningham, Danielle Citron, John Grant, Orin Kerr, Greg Nojeim, and Brian Pascal. We particularly thank Stephen Henderson, who moderated the panel devoted to our paper and furnished excellent guidance. 1262 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 28:1261 TABLE OF CONTENTS I. INTRODUCTION .......................................................................................... 1264 II. THE SWISS LEGAL FRAMEWORK FOR SURVEILLANCE ....... 1269 A. SWISS LEGAL STRUCTURE ..................................................................... 1269 B. RIGHTS TO PRIVACY UNDER THE SWISS CONSTITUTION .............. 1270 C. RIGHTS TO PRIVACY UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS ................................................................................ 1272 III. THE U.S. FRAMEWORK FOR SURVEILLANCE— COMPARED ..................................................................................................... 1277 A. U.S. LEGAL STRUCTURE ........................................................................ 1277 B. RIGHTS TO PRIVACY UNDER THE U.S. CONSTITUTION ................. 1278 C. RIGHTS TO PRIVACY UNDER INTERNATIONAL LAW ...................... 1284 IV. SWITZERLAND: APPLICABLE LAW ENFORCEMENT SURVEILLANCE ACTS ............................................................................... 1285 A. THE LAWS PRIOR TO THE SWISS CRIMINAL PROCEDURE CODE (“CRIMPC”) .................................................................................. 1285 B. CRIMPC ..................................................................................................... 1287 C. OTHER ACTS PERTINENT TO LAW ENFORCEMENT SURVEILLANCE ........................................................................................ 1289 V. UNITED STATES: APPLICABLE SURVEILLANCE ACTS ......... 1290 A. THE WIRETAP ACT ................................................................................. 1290 B. THE ELECTRONIC COMMUNICATIONS PRIVACY ACT (“ECPA”) .................................................................................................. 1291 C. THE USA PATRIOT ACT AND OTHER AMENDMENTS .................. 1292 VI. COMMON ELEMENTS IN SURVEILLANCE PROCEDURES ................................................................................................ 1294 A. LEVELS OF OVERSIGHT ......................................................................... 1294 B. CONDITIONS ............................................................................................ 1296 1. Procedural Hurdles .......................................................................... 1296 2. Predicate Offenses ............................................................................. 1297 3. Other Limits .................................................................................... 1298 C. NOTICE ..................................................................................................... 1299 D. CONSEQUENCES OF ILLEGAL SURVEILLANCE .................................. 1301 E. REPORTING .............................................................................................. 1303 VII. SURVEILLANCE REGULATION COMPARED ............................... 1303 A. INTRODUCTION ....................................................................................... 1303 B. MONITORING OF POST AND TELECOMMUNICATIONS ................... 1304 2013] REFORMING SURVEILLANCE LAW: THE SWISS MODEL 1263 1. In Switzerland ................................................................................. 1304 2. In the United States ......................................................................... 1306 a) Several Distinctions ......................................................... 1306 b) Interception of Postal Mail Contents ........................... 1306 c) Interception of Wire Communications Content ........ 1307 d) Interception of Electronic Communications Content.............................................................................. 1308 e) Acquisition of Stored Electronic Communications Content .............................................. 1310 C. ACQUISITION OF USER IDENTIFICATION DATA .............................. 1314 1. In Switzerland ................................................................................. 1314 2. In the United States ......................................................................... 1315 a) Several Distinctions ......................................................... 1315 b) Collection of Postal Mail Attributes ............................. 1316 c) Collection of Electronic Communication Attributes in Real Time .................................................. 1316 d) Collection of Electronic Communication Attributes from Electronic Storage .............................. 1318 e) Cell Site Location Data Acquisition ............................. 1319 D. TECHNICAL SURVEILLANCE EQUIPMENT ......................................... 1320 1. In Switzerland ................................................................................. 1320 2. In the United States ......................................................................... 1321 E. SURVEILLANCE OF CONTACTS WITH A BANK ................................... 1322 1. In Switzerland ................................................................................. 1322 2. In the United States ......................................................................... 1324 F. UNDERCOVER OPERATIONS ................................................................ 1324 1. In Switzerland ................................................................................. 1324 2. In the United States ......................................................................... 1325 G. PHYSICAL OBSERVATION ...................................................................... 1325 1. In Switzerland ................................................................................. 1325 2. In the United States ......................................................................... 1327 H. NEW TECHNIQUES ................................................................................. 1328 1. In Switzerland ................................................................................. 1328 2. In the United States ......................................................................... 1329 VIII. CONCLUSION ...............................................................................................
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