The Future of Surveillance Laws: What Threema and Protonmail Users Need to Know

Understanding the Current Surveillance Landscape

Switzerland’s surveillance laws have long been a subject of debate, especially when it comes to the obligations of telecommunications companies. The Federal Council’s recent plans to revise the surveillance law have sparked concerns among privacy advocates and users of secure messaging services like Threema and Protonmail. These services, known for their high levels of data protection, could face significant changes under the proposed revisions.

The Role of Telecommunications Companies

In Switzerland, telecommunications companies are legally obligated to cooperate with security authorities. This cooperation is essential for the efficient operation of intelligence agencies and security authorities. Companies like Swisscom, along with smaller internet service providers, must comply with these requirements or face legal action.

The Federal Council justifies this compulsion by stating, "For a functioning monitoring of telecommunications traffic, the participation of companies in the telecommunications sector is essential." This cooperation involves different information obligations depending on the type of services offered, including real-time surveillance and data storage.

The Legal Battles of Threema and Protonmail

Threema’s Legal Victory

Threema, a Swiss-based messaging service, has been at the center of legal battles regarding its classification and cooperation obligations. In 2021, the Federal Supreme Court ruled that Threema should not be classified as a telecommunications provider (FDA). This decision prevented Threema from being subjected to more stringent cooperation requirements with security authorities.

Protonmail’s Legal Success

Similarly, Protonmail, an email provider based in Geneva, has also successfully defended itself against being classified as an FDA. This classification would have imposed more significant cooperation obligations on the service.

The Proposed Revisions and Their Implications

New Categories and Obligations

The Federal Council’s recent consultation for a partial revision of the federal law on the surveillance of postal and telecommunications (Büpf) introduces new categories for the classification of services and their cooperation obligations. The current distinction between telecommunications providers (FDA) and providers of derived communication services (AAKD) is set to be expanded.

The proposed revisions aim to create more balanced duties by dividing the AAKD category into three subcategories: AAKD with minimal duties, AAKD with reduced obligations, and AAKD with full duties. This differentiation is intended to align the obligations of services with comparable size and economic importance.

Critics’ Concerns

Critics argue that these revisions are an attempt by the Swiss authorities to force services like Threema and Protonmail into greater cooperation, despite their previous legal victories. Martin Steiger, a lawyer and spokesman for a digital space association, expresses concerns about the process:

"Ultimately, the procedure is always the same. The security authorities in Switzerland strain, formulated reluctantly, in monitoring the existing legal bases and count on a normally benevolent case law. If this does not fall benevolently, it is lobbied to expand the legal foundations."

Government’s Response

The Federal Government, however, contradicts these concerns. Jean-Louis Biberstein, deputy head of the service monitoring postal and telecommunications traffic (ÜPF), states that the revision aims to consistently implement the case law of the Federal Court and create legal certainty. He emphasizes that there will be no obligation to lift end-to-end encryption.

The Public Consultation and Future Steps

The consultation for the partial revision of the Büpf continues until May 6th. Threema and Protonmail have not provided detailed comments on the federal procedure but have indicated that they consider the proposed changes "extremely problematic."

Table: Current and Proposed Obligations

FAQ Section

What are the current obligations for telecommunications providers in Switzerland?

Telecommunications providers in Switzerland are legally obligated to cooperate with security authorities, which includes real-time surveillance, data storage, and providing technical data and contract details.

How have Threema and Protonmail defended their positions?

Both Threema and Protonmail have successfully defended themselves against being classified as telecommunications providers (FDA), which would impose more stringent cooperation obligations. Threema’s case went to the Federal Supreme Court, where it was ruled that Threema should not be classified as an FDA.

What are the proposed changes in the surveillance law?

The proposed revisions introduce new categories for the classification of services and their cooperation obligations. The current distinction between FDA and AAKD will be expanded to include three subcategories of AAKD with varying levels of duties.

Will the proposed changes affect end-to-end encryption?

According to Jean-Louis Biberstein, deputy head of the service monitoring postal and telecommunications traffic (ÜPF), there will be no obligation to lift end-to-end encryption under the proposed revisions.

Did You Know?

Threema and Protonmail are not the only services facing potential changes. Over a thousand providers in Switzerland could be affected by the proposed revisions, ranging from large telecommunications companies to smaller internet service providers.

Pro Tips

Stay informed about the public consultation process and submit your feedback. Your input could shape the future of surveillance laws in Switzerland. Keep an eye on updates from Threema and Protonmail, as they are likely to provide detailed statements on the proposed changes.

Call to Action

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