1 Upcoming Revisions
The telecommunications sector is on the move when looking at the upcoming legislation in revision, namely revisions of the Intelligence and Security Act, the Lawful Interception Act, the Telecommunications Act, the Copyright Act and of the Data Protection Act.
The first revision to enter into force is the revision of the Intelligence and Security Act, followed by the revision of the Lawful Interception Act. The other revisions are still in process, none of them has reached parliament yet. Nevertheless, the amend-ment of the two first acts provide us with the oppor-tunity for a tour d'horizon.
2 Intelligence and Security Act and its Ordinances
Even after passing parliament, the Intelligence and Security Act has remained quite controversial and a referendum has been requested. It has not been successful and the Intelligence and Security Act passed referendum last September. Thereafter, the Ordinances have been drafted, sent into consultation and finalized.
The new Intelligence and Security Act requests coop-eration of service providers, without, however, using the terms defined in the Telecommunication Act or in the Lawful Interception Act, so that it remain unclear who will need to cooperate (unclear personal scope of application).
The service providers will mainly have to cooperate with regard to two measures:
Intrusion in the computer systems and net-works (e.g. Trojan horses), whereby the cooperation obligations are not precisely de-fined so that the role of the service providers is unclear yet; access cable networks, whereby the service providers will have to provide the Service with (technical) access information to the ca-ble network and give access to their location if requested, and provide data found by means of keyword research. The two measures may only be ordered if certain conditions are met. The measures need to be ap-proved by the Federal Administrative Court and, be-sides this approval, the access to cable networks needs also to be approved by the Head of the Federal Department of Defence, Civil Protection and Sport (one of the seven Federal Councillors). The service providers will not have a right to challenge the order unless the order requests obligations for the service provider that are not foreseen by the Intelligence and Security Act.
The Intelligence and Security Act and its Ordinances entered into force on 1st September 2017
3 Lawful Interception Act and its Ordinances