Reforming Surveillance Law: The Swiss Model
University of San Francisco School of Law
University of Lausanne, Faculty of Law and Criminal Justice
Berkeley Technology Law Journal, Vol. 28, 2013
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 reviewAccepted Paper Series
Date posted: December 19, 2013
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