Facts
In this case, the Public Prosecutor's Office II, Cybercrime, of the Canton of Zurich was conducting a criminal investigation against an unknown perpetrator for qualified violation of the Narcotics Act and qualified money laundering. The Public Prosecutor's Office requested the Compulsory Measures Court to authorize the monitoring of the accused A.'s keyboard inputs using a software-based keylogger in order to obtain his passwords.
The Compulsory Measures Court refused the authorization, as it was of the opinion that a software-based keylogger does not fall under the term "surveillance device" within the meaning of Art. 280 lit. b CPC. The Office of the Attorney General appealed against this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court upheld the appeal. It stated that keyloggers are generally to be classified as surveillance devices within the meaning of Art. 280 lit. b CPC, regardless of whether they are a mechanical or software-based variant. The decisive factor is not the nature of the device, but the manner in which the surveillance instrument is used.
Furthermore, the Federal Supreme Court clarified that the use of a keylogger does not fall under Art. 269ter CPC (use of special computer…