- within Antitrust/Competition Law, Intellectual Property and Privacy topic(s)
In a landmark decision 7B_550/2024 of 23 January 2026, the Federal Supreme Court overturned its recent case law to permit criminal prosecution authorities to make a preventive mirror copy of an electronic device (such as a smartphone) immediately after seizure. The relevant authorities can now do this without having to wait for the three-day period specified in Art. 248 para. 1 CCP to lapse, which previously gave time to a device's owner to request that it be sealed. However, there will still be a need to take certain precautions.
In summary:
The three-day time limit set out in Art. 248 para. 1 CCP aims to
prevent the criminal prosecution authority from gaining premature
knowledge of the data before any request for sealing. Under the old
law applicable to sealings (Art. 248 and 264 aCCP), applicable
until 31 December 2023, the Federal Supreme Court's case law
(ATF 148 IV 221 and Federal Supreme Court decision 7B_515/2024 of 3
April 2025) held that the criminal prosecution authority could not
by itself make a mirror copy of the seized data. Instead, this task
fell to the compulsory measures court called upon to rule on the
request to lift the seal. Otherwise, there could be potential for
the prosecuting authorities to gain access to the data during the
process and effectively render the purpose of the sealing
meaningless.
However, the question arose as to whether this case law, which was not codified in the new sealing law, could be upheld under the new Art. 248 para. 1 CCP. This provides that during the three-day period the authority may neither examine nor use the seized data.
In its new ruling, the Federal Supreme Court considers technological developments such as automatic data deletion, remote device locking and data protection through advanced encryption mechanisms. Waiting three days without the ability to make a preventive copy of the data contained on a device ( such as a smartphone) can therefore lead to the irreversible loss of evidence.
Furthermore, a mirror copy is a technical precautionary measure and not an investigative act relating to the content of the data. If the copy is made by a forensic specialist without viewing the copied data, the data has not been examined or exploited.
The Federal Supreme Court has therefore reversed its previous case law by ruling that a preventive mirror copy of an electronic device is lawful, provided that: (i) the copy is made by an expert who is independent of the investigators and (ii) that expert is not subsequently involved in the criminal investigation.
Comment:
With this ruling, the Federal Supreme Court largely validates the
police practice of preventive mirror copying of electronic devices,
and takes account of technological developments, particularly the
risk of data being altered or deleted shortly after seizure.
However, certain conditions must be observed, particularly
regarding the identity of the person responsible for making the
copy. In the specific case, the request for sealing came after the
seizure and copying of the data. The question therefore arises as
to whether mirroring remains possible in cases where a request for
sealing is made immediately upon seizure. Given the importance that
the Federal Court attaches to data preservation, the answer appears
to be yes. Furthermore, this new case law could lead to the
widespread use of mirror copying; this considerably increases the
risk of data that is irrelevant to the investigation and
potentially sensitive, if not protected by secrecy obligations,
being added to the case file, particularly if the owner renounces
to request for sealing or if the seals are lifted. This raises
questions from the perspective of the principle of
proportionality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
