Proton AG, the Geneva-based company behind Protonmail and ProtonVPN, has won a court appeal regarding the Swiss law governing telecommunications surveillance, according to a Swiss court last Friday.
The Swiss Post and Telecommunications Surveillance Service (PTSS) had decided in September 2020 that Proton and its subsidiaries could no longer benefit from limited surveillance obligations. The Swiss Federal Administrative Court, however, upheld Proton’s appeal over its status and obligations over traffic monitoring and storage.
As per the court, Proton’s email services, ProtonMail, cannot be considered telecommunications providers in Switzerland and hence are not subject to any data retention requirements that may be imposed otherwise.
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The PTSS had abruptly revoked Proton’s limited surveillance obligations back in September 2020. Before the revoking order, Proton was only required to provide IP addresses to surveillance in cases of “extreme criminal cases”. Article 271 of the Swiss Criminal Code was also in the company’s favour, stating that the Swiss government must approve any data submitted for surveillance purposes.
The decision is a significant relief for the company as only last month; it was under fire for logging the IP address of a French climate activist under orders from Swiss authorities which were in turn requested by the French to help track down the activist.
Proton having to give up this IP address was the direct result of this sudden policy change and being subjected to new data retention rules for future surveillance requirements.
Although Proton did provide an explanation, saying it had no choice but to comply, it still left a sour taste for a lot of users of the company’s email service.
However, since last Friday’s ruling stated that email services are different from standard telecommunications providers for whom the obligations were initially designed, Proton can now get rid of the new data retention requirements.
The ruling also follows another similar decision by the Swiss Supreme Court stating that services such as Whatsapp, Zoom, Threema and Skype are not considered telecom providers but OTT service providers instead.
With the decision being in Proton’s favour and the company being exempt from any such data retention or monitoring requirements, Andy Yen, CEO and founder, called the ruling an “important first step” in the company’s campaign to advance privacy.
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