10 November 2012


'Reforming Surveillance Law: The Swiss Model' by Susan Freiwald and Sylvain Métille in Berkeley Technology Law Journal comments that
As implemented over the past twenty-six 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, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.
This article is the first to analyze the Swiss law 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, the Swiss significantly restrict several law enforcement surveillance practices that U.S. law leaves to the discretion of the police. The 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 law.
In the United States, the courts and Congress have struggled to establish appropriate surveillance rules, as evidenced by recent controversial judgments in the Supreme and appellate courts and congressional hearings on ECPA reform. Citizens have grown increasingly concerned about law enforcement agents’ excessive use of new surveillance technologies to gather information about their private communications and daily activities. This article analyzes an alternative approach that, if adopted here, would significantly improve our electronic surveillance laws.
The authors conclude -
In the United States, traditional wiretapping (of wire, oral and electronic communications) and some video surveillance is subject to most of the restrictions imposed by CrimPC in Switzerland: notice, a remedy, subsidiarity and proportionality. The rest of what CrimPC treats as surveillance is subject to significantly less protection. Law enforcement agents in the United States may use undercover agents, collect stored communications contents and attributes, intercept communication attributes in real time, track location data, and use of other modern surveillance techniques subject either to no regulation at all or to the anemic protections afforded by ECPA and a few related statutes.
CrimPC, which brought unity and comprehensive treatment to Swiss surveillance law, dramatically contrasts with the laws that regulate surveillance in the United States, which are an incomplete, confusing, and ineffective set of rules. It seems clear that the substantive requirements in both the European Convention on Human Rights and the Swiss constitution have yielded the significantly stronger restrictions on law enforcement surveillance that Swiss law provides. The limited coverage of the Fourth Amendment, and the fact that it exerts no real influence until a court finds it to apply, shifts the default rule in the United States in favor of using new surveillance methods that the legislature has not yet regulated. The opposite rule applies in Switzerland, where techniques that CrimPC does not cover, either explicitly or by analogy, cannot be used. It would represent a significant and likely unattainable, shift in our jurisprudence to prohibit law enforcement agents from using new surveillance techniques until Congress explicitly authorizes those techniques. It should be possible, however, for Congress to design a set of surveillance rules that abandon arbitrary distinctions, provide sufficient procedural hurdles and oversight to constrain invasive practices, furnish meaningful remedies to deter abuse, and provide notice and transparency to ensure that the system works as designed. In drafting such an overhaul, American legislators should look to CrimPC for guidance.