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Am 16. Februar 2022 wurde die Vernehmlassung zur geplanten Teilrevision des Bundesgesetzes betreffend die Überwachung des Post- und Fernmeldeverkehrs (BÜPF, SR 780.1), durch den Bundesrat veranlasst. Bis zum 23. Mai 2022 können sich Interessierte zur vorgesehenen Teilrevision äussern.

The BÜPF (Bundesgesetz betreffend die Überwachung des Post- und Fernmeldeverkehrs) came into force in 2018, and now it is to be partially revised. The necessity of the adjustments to the BÜPF and in particular the surveillance possibilities are justified by the great technological progress since the law came into force. For example, mobile radio technology has also moved to the fifth generation (5G). It is therefore necessary to create additional types of information and surveillance in the BÜPF in order to be able to continue surveillance at the current level. In addition, the Confederation, the cantons and the companies obliged to cooperate have in the meantime gained initial experience with the newly introduced monitoring options and with cooperation. Individual aspects of the ordinances should therefore be updated based on the existing legal foundations. To this end, the Ordinance on the Surveillance of Postal and Telecommunications Traffic (VÜPF, SR 780.11) must be adapted. However, individual provisions must also be amended in the Ordinance on Fees and Compensation for the Interception of Postal and Telecommunications Traffic(OAPPF, SR 780.115.1), the Ordinance of the FDJP on the Implementation of the Interception of Postal and Telecommunications Traffic(OAPPF, SR 780.117) and in the Ordinance on the Processing System for the Interception of Postal and Telecommunications Traffic (OAPPF, SR 780.12)

Adaptations in the VÜPF (Verordnung über die Überwachung des Post- und Fernmeldeverkehrs)

The current OAPC already provided for surveillance outside of criminal proceedings to be possible under certain circumstances (see Art. 35 OAPC), e.g. in order to track down missing persons (so-called emergency searches). Thanks to the proposed adjustments in the ordinances just mentioned, the advantages of technological advancements can be used in this context. Until now, it has only been possible to determine the location approximately, but in the future, the terminal device could be located much more precisely by using position determination instead of the less precise location determination. Location determination allows the last available location of a mobile device to be determined with the help of mobile radio cells. The emergency search by means of a one-time, immediate position determination is now legally anchored in Art. 67 Para. 1 lit. b VÜPF, which corresponds to the new surveillance type RT_56_POS_IMMED. The position of the monitored identifier, the so-called target ID, of the mobile terminal is determined. In lit. c, it is now stipulated that a periodically recurring position determination of all mobile terminals with the monitored target ID is also permissible, which corresponds to the new monitoring type RT_57_POS_PERIOD. By determining the exact position of a missing person, unnecessary loss of time can be avoided, which favours the rescue of this person. In addition, the use of personnel and material can be reduced, which also lowers costs. The adaptation to 5G technology manifests itself, for example, in the choice of identifiers. Previously, the DSL identifier of broadband internet connections (in the fixed network) was mentioned as an exemplary specification about which information had to be provided. This is now replaced by the Generic Public Subscription Identifier (GPSI), because the latter is a more up-to-date example than the previously anchored term. According to the explanatory report, however, the change does not mean that the DSL identifier no longer has to be disclosed in the case of a request for information pursuant to Art. 35 para. 1 lit. d No. 2 UTPA. According to the explanation, the OTO ID, an identifier which describes the fibre optic home connection, must also be provided. An adjustment is also made in Art. 35 Para. 1 lit. d No. 10, namely the previous examples are supplemented by an identifier of 5G technology, the Subscription Permanent Identifier (SUPI)

Adjustments in the VVS-ÜPF

By adapting Art. 8 para. 3 VVS-ÜPF, the service ÜPF can allow certain employees to pass on access to third parties (e.g. to the police). This corresponds to an expansion of the previous possibilities, because currently access can only be passed on to the same authority or to the persons concerned or their legal advisors. Thanks to the amendment, the accesses can now also be transferred to the consenting authority as well as to the compulsory measures court. The authorising authorities’ authorisations remain unchanged. Access to the data can take place for the purpose of quality control as well as for advising the authorities in accordance with Art. 16 lit. j BÜPF. In principle, the written consent of the competent authority is required for this before access. Exceptions are provided for in para. 5 of the aforementioned article. In Art. 10 Para. 4 VVS-ÜPF, the time limits for the storage of data are regulated. However, it is not specified how long the protocols on the deletion of the data must be kept. According to the explanatory report, Art. 10 VDSG is not applicable to this regulation

Adaptations in the VD-ÜPF

The time limits previously provided for the provision of information were judged to be too long, which is why they have now been reduced in the new VD-ÜPF in Art. 14. Furthermore, the processing times differ depending on the size of the telecommunications service provider who is obliged to cooperate (cf. art. 21 OFSP and art. 51 f. OFSP). Thus, Art. 14 paragraph 2 VD-ÜPF regulates the processing times for the “large” and “medium-sized” providers obliged to cooperate. These include telecommunications service providers, except those with reduced monitoring obligations under Art. 51 UTPA, providers of derived communications services with more extensive obligations to provide information under Art. 22 VD-ÜPF, and providers of derived communications services with more extensive monitoring obligations under Art. 52 UTPA

Art. 14 para. 2 lit. a VD-ÜPF states that the type of information according to Art. 48b VÜPF must be answered immediately. The reason for this is that the temporary identifiers change frequently and the response time may therefore only take a few seconds. This information must therefore be automated. The deadlines for reply in lit. b and c no. 1 remain, but in no. 2 it is specified that the information listed therein must now be provided within 6 hours if the request for information is made outside working hours or on a holiday. According to the explanations to Art. 14 VD-ÜPF, the new provision means that a request for information received during working hours must be answered by 5 p.m. the next day. As soon as a request for information is made outside normal working hours, the person obliged to cooperate must be notified and an additional compensation (pictet fee) must be paid

Adjustments to the FOPI

Apart from the adaptation to technical developments, provisions on fees in the FOPO must also be renewed. The entitlement to compensation is not affected by the partial revision to be carried out: All those obliged to cooperate, with the exception of professional resellers (Art. 2 lit. f FÜPF), are still entitled to compensation in accordance with Art. 15 FÜPF after fulfilling their obligations to cooperate. Now the support of the FÜPF service in the provision of information or surveillance can also be compensated, even if the person obliged to cooperate is not obliged to cooperate in the specific case. The verb “may” makes it clear that there is no obligation to provide compensation. If a person obliged to cooperate provides the service he is legally obliged to provide in an inadequate manner, he may be charged the costs incurred by the FSPO pursuant to Art. 19, para. 1 FSPO. Until now, the compensation was calculated according to the time spent, but this was perceived too restrictively. Thanks to the amendment, after the partial revision comes into force, it can also be decided in each case individually whether the provision of materials that have been used once are to be charged. In the case of this material, it must then be decided whether or not it will be transferred after the end of the monitoring. The exact fees are set out in the table in the annex to the GebV-ÜPF


In summary, therefore, the extensions to the BÜPF in connection with 5G relate primarily to the updating of examples and the better use of the new technical possibilities of position determination. The partial revision is in the consultation phase until 23 May 2022. Only then will it become clear whether all the proposed innovations will actually be included in the ordinances

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