Facts
The Federal Supreme Court decided in a case where the District Attorney's Office of Dielsdorf requested the Swiss Online AG, as the provider of e-mail traffic, to provide information on the actual sender and the exact time of dispatch of a manipulated e-mail. Swiss Online AG filed an administrative court appeal and a subsidiary constitutional appeal against this order.
The Federal Supreme Court dismissed the administrative court appeal but upheld the constitutional appeal. It concluded that the order of the District Attorney's Office, based on § 103 of the Criminal Procedure Code of the Canton of Zurich, was not permissible. Instead, the requirements of Art. 179octies of the Swiss Criminal Code and the relevant provisions of the Criminal Procedure Codes should have been met, as the collection of metadata of e-mail traffic constitutes an interference with the constitutionally protected secrecy of telecommunications.
Considerations
The Federal Supreme Court stated that the Telecommunications Act does not provide a basis for ordering specific monitoring. The substantive basis for interference with the secrecy of telecommunications is rather found in the relevant provisions of the Criminal Procedure Codes.
Furthermore, the Federal Supreme Court clarified that the identification of participants in telephone conversations also…