Abstract

http://ssrn.com/abstract=2369075
 


 



Reforming Surveillance Law: The Swiss Model


Susan Freiwald


University of San Francisco School of Law

Sylvain Métille


University of Lausanne, Faculty of Law and Criminal Justice

2013

Berkeley Technology Law Journal, Vol. 28, 2013

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.

Number of Pages in PDF File: 72

Keywords: EPCA, CrimPC, Electronic Communications Privacy Act, electronic surveillance, NSA, comparative law, international law, judicial review

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Date posted: December 19, 2013  

Suggested Citation

Freiwald, Susan and Métille, Sylvain, Reforming Surveillance Law: The Swiss Model (2013). Berkeley Technology Law Journal, Vol. 28, 2013. Available at SSRN: http://ssrn.com/abstract=2369075

Contact Information

Susan Freiwald (Contact Author)
University of San Francisco School of Law ( email )
2130 Fulton Street
San Francisco, CA 94117
United States
415-422-6467 (Phone)
415-422-6433 (Fax)
Sylvain Métille
University of Lausanne, Faculty of Law and Criminal Justice ( email )
Lausanne, 1015
Switzerland
HOME PAGE: http://www.unil.ch/droit/page7844.html
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