Facts
The accused was in pre-trial detention on suspicion of aggravated cocaine trafficking. In early June 2016, a note containing his access data (username and password) to his Facebook account was secured in a notebook he intended to give to a language teacher. The Regional Public Prosecutor's Office of Berner Jura-Seeland then, on 9 June 2016, used the obtained access data to view the accused's Facebook account online and provisionally secure relevant chat messages via the cantonal police. On 26 September 2016, the accused applied for the sealing of all recorded data, whereupon the public prosecutor's office filed a request for unsealing with the cantonal coercive measures court. On 14 December 2016, the coercive measures court partially granted the unsealing request. The accused appealed against this decision with a complaint on 30 January 2017, seeking the annulment of the contested decision and the complete rejection of the unsealing request.
Considerations
The Federal Supreme Court first examined whether the online research and provisional securing of the chat messages on Facebook complied with the provisions of the Criminal Procedure Code (CrimPC). It found that Articles 269–279 CrimPC do not apply to so-called derived internet services such as Facebook, as these are not providers of telecommunications services within the meaning of the Federal Act on the Monitoring of Post and Telecommunications Traffic (SPTA). The data was not obtained through telecommunications monitoring but through online research on the password-protected Facebook account of the accused, to which the investigating authorities had gained access via a secured note smuggled out of prison.
The court emphasised that the use of the internet for criminal investigations is generally permissible provided that the legal requirements for coercive measures are met. In the present case, there was urgent danger as the accused had attempted to smuggle his access data out of prison as a note to collude with others. The public prosecutor's office was therefore entitled to use the secured access data to conduct the online research and provisionally secure the chat messages. These measures were based on Articles 246, 241 para. 3, 263 para. 3 and 265 para. 4 CrimPC, which allow for the provisional securing of evidence in urgent cases.
The Federal Supreme Court also dismissed the accused's argument that the data collection violated the principle of territoriality. Since the online research was conducted from servers in Switzerland and no sovereign acts were carried out abroad, there was no violation of the…