Facts
The Swiss Online AG, an internet service provider, was requested by the District Attorney's Office Bülach to reveal the identity of a customer with a specific IP address who had offered child pornographic images on the internet. The Swiss Online AG filed an appeal against this ruling and argued that it was being forced to act without sufficient legal basis and was thus being restricted in its economic and property freedom.
The Public Prosecutor's Office of the Canton of Zurich dismissed the appeal and stated that the examination of the legal basis for the surveillance measure was the responsibility of the President of the Court of Appeal of the Higher Court. The Swiss Online AG then filed a constitutional complaint with the Federal Court and claimed a violation of Art. 29 Cst. as well as Art. 26 and 27 Cst. in conjunction with Art. 36 Cst.
Considerations
The Federal Court examined the admissibility of the appeal and found that the Public Prosecutor's Office had rightly not considered the appeal insofar as the Swiss Online AG had requested the dismissal of the proceedings. Similarly, the Public Prosecutor's Office had rightly not considered the appeal with regard to the collection of traffic data, as the surveillance measure had already been approved by the President of the Court of Appeal.
The Federal Court stated that the material legal basis for surveillance measures can be found in the applicable codes of criminal procedure and that the provisions of criminal procedure law may justify the interference with the telecommunications traffic of users on the condition of judicial approval. The obligation of telecommunications service providers to provide information to the competent judicial and police authorities,…