Switzerland: Keylogger software legal with immediate effect

Keyloggers are probably one of the most controversial tools in the field of surveillance software. In quite a few countries, their use is therefore regularly debated. This is also the case in Switzerland. The many questions surrounding their legality have now been clarified by the highest court in our neighboring country. It ruled that their use was legal.

Finally clarity – at least in Switzerland

The starting point of all this was the investigative work of the Swiss authorities in a drug investigation. In order to make progress, the investigators relied on so-called keylogger software. In simple terms, this ensures that entries on the keyboard of a PC are registered and recorded. The Zurich cantonal high court went on the barricades against the use and ruled that it was not in line with Swiss law. Now Switzerland’s highest court has given its final verdict, revising the assessment of its fellow judges. The highest judges see a use of such software as unproblematic.

A declaration of war on the darknet?

If you take a closer look, the court ruling seems like a clear declaration of war against the nebulous structures in the darknet. Whereas in the past it was possible to put a stop to narcotics trafficking simply by tracking people or tapping phones, nowadays one obviously has to be more broadly positioned. After all, illegal activities are increasingly shifting to the Darknet. This was also the case in the original case. There, drugs were sold via “the evil side of the Internet”. In order to be able to find out who was behind it and to obtain further valid information, the public prosecutor’s office in this case aimed to install suitable monitoring software on a suspect’s notebook.

Keylogger software is “technical surveillance device”

The Swiss Code of Criminal Procedure certainly provides for possibilities to be able to monitor suspected persons. Thus, Article 280 StPO states that one would be allowed to collect more detailed information with the help of a “technical surveillance device”. This is the major point of contention of the entire issue. While the Supreme Court namely does not consider a software-based keylogger to be just such a device, the highest Swiss court, on the other hand, has said:

“The requirements for the use of a technical surveillance device within the meaning of Article 280 of the Code of Criminal Procedure (StPO) are met. Contrary to the view of the higher court, a software-based keylogger is also a ‘technical surveillance device’ within the meaning of the law.”

A landmark ruling

If Switzerland’s highest court has made anything clear, it’s that technical surveillance devices do not have to be physical in any way. The judges immediately made clear why this is so with a comprehensible argument:

“A distinction between a mechanical keylogger and a software-based keylogger makes no sense”

.
It is just not important whether it is hardware or software. Much more important are the sense and purpose of its use. If a software keylogger has the same mode of operation as its hardware counterpart, it simply does not matter what is ultimately used.

“Insofar as the mode of action of the software-based keylogger is absolutely identical to a corresponding mechanical device and does not exceed it, it cannot matter whether it is a physical object or software.”