Facts
The Federal Supreme Court decided in two related proceedings (1B_132/2020 and 1B_184/2020) that the technical surveillance ordered by the public prosecutor's office using a software-based keylogger fulfills the legal requirements under Art. 280 lit. b CrimPC and that its approval should be granted. The lower court had refused to approve the surveillance using a keylogger.
In the criminal proceedings against an unknown perpetrator for qualified violation of the Narcotics Act and qualified money laundering, the public prosecutor's office ordered the surveillance of all keyboard inputs of the accused using a keylogger. However, the compulsory measures court refused to grant the authorization for this technical surveillance measure.
The Office of the Attorney General then filed an appeal with the Federal Supreme Court. The latter concluded that the software-based keylogger is to be subsumed under Art. 280 lit. b CrimPC and that its use should therefore be approved. The lower court had violated federal law by refusing the approval.
Considerations
The Federal Supreme Court stated that the prevailing view in the literature is that keyloggers are to be subsumed under Art. 280 lit. b CrimPC. It does not matter whether it is a mechanical or software-based keylogger. The decisive factor is the manner of deployment, not the nature of the surveillance instrument.
Furthermore, the Federal Supreme…