Features of oversight bodies
In Sweden, the expert body SIUN, is tasked with ensuring
that the state’s signals intelligence is carried out
lawfully.312 SIUN monitors the conduct of the intelligence
service and must be informed about the search terms
the services apply. It exerts control over the signals
that telecommunications carriers must provide to
interaction points. SIUN is also in charge of reviewing
the processing of personal data by the intelligence
service, and ensuring that data collection complies with
the permits issued by the Defence Intelligence Court. It
has the power to stop on-going signals intelligence and
subsequently order the destruction of collected data.
ECtHR case law: access to relevant
documents
“Turning now to the prosecutors’ powers and competences, the Court notes that it is essential that the supervisory body has access to all relevant documents,
including closed materials and that all those involved in
interception activities have a duty to disclose to it any
material it required.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015,
para. 281
UN good practices on access to information
Practice 7. Oversight institutions have […] full and unhindered access to the information, officials and installations
necessary to fulfil their mandates. Oversight institutions
receive the full cooperation of intelligence services and
law enforcement authorities in hearing witnesses and
obtaining documentation and other evidence.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
Another key power of oversight bodies is access to
information, IT systems, documents and data – including
not only that relating to specific operations, but also to
internal policies and guidance. While access need not
be complete, it should cover everything that may be
relevant for the oversight bodies. In addition, access
should be autonomous: oversight bodies should not be
required to rely on the services to provide them what
they deem relevant.
312 Sweden, Signals Intelligence Act (Lag [2008:717] om
signalspaning I försvarsunderrättelseverksamhet), ss.
10 and 10a, 10 December 2009; and Sweden, Regulation
with instructions for the Swedish Foreign Intelligence
Inspectorate (Förordning [2009:969] med instruktion för
Statens inspektion för försvarsunderrättelseverksamheten),
15 October 2009.
In the United Kingdom, the Investigatory Powers
Commissioner (IPC) must keep under review the
majority of the targeted and bulk surveillance powers
available to the intelligence services, such as the
interception of communications, the acquisition or
retention of communications data and equipment
interference.313The primary aim of the IPC’s oversight
is to keep under review the operation of safeguards
to protect privacy,314 excluding cases already being
considered by the courts.315 The Investigatory
Powers Act grants extensive powers to the IPC. The
intelligence services must disclose or provide all
the necessary documents and information for the
purposes of IPC’s functions.316 In addition, if the IPC
requires assistance in accessing apparatuses, systems
or other facilities of the intelligence services when
exercising oversight functions, this must be provided
by the intelligence services.317
In the Netherlands, the new legislation stipulates that
one of the two sub-committees of the CTIVD performs
general oversight. It reviews on a regular basis the
activities of both intelligence services by investigating
whether their operations or actions are in accordance
with the existing legal surveillance framework. The
CTIVD may request information and the minister’s
cooperation, and can give the minister unsolicited
advice. In addition, through in-depth investigations and
its complaints-handling318 role, the CTIVD ensures that
the intelligence services perform their duties lawfully.
To do so, it has unlimited and independent access
to AIVD data.319
In France, the CNCTR enjoys permanent, complete
and direct access to the implementation reports and
registries of surveillance techniques, to the collected
intelligence, as well as to the transcriptions and
extractions carried out by the intelligence services.
Moreover, the CNCTR has unlimited access to the
premises where collected data are stored, in addition
to the devices used to trace the collected data.320
313
314
315
316
317
318
United Kingdom, Investigatory Powers Act 2016, s. 229 (1).
Ibid. s. 229 (5).
Ibid. s. 229 (4).
Ibid. s. 235 (2).
Ibid. s. 235 (3) and (4).
The Netherlands, Act on the Intelligence and
Security Services 2017 (Wet op de inlichtingen- en
veiligheidsdiensten 2017), Art. 97.
319 Ibid., Articles 107-111.
320 France, Interior Security Code (Code de la sécurité
intérieure), Art. L. 833-2.
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