CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
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(usually with the help of selectors) was one of the important stages for
balancing personal integrity concerns against other interests.
70. According to the report, the two most significant safeguards were the
authorisation process (of collection and access) and the oversight process. It
was clear from the Court’s case-law that the latter must be performed by an
independent, external body. While the Court had a preference for judicial
authorisation, it had not found this to be a necessary requirement. Rather,
the system had to be assessed as a whole, and where independent controls
were absent at the authorisation stage, particularly strong safeguards had to
exist at the oversight stage. In this regard, the Venice Commission
considered the example of the system in the United States, where
authorisation was given by the Foreign Intelligence Surveillance Court.
However, it noted that despite the existence of judicial authorisation, the
lack of independent oversight of the court’s conditions was problematic.
71. Similarly, the Commission observed that notification of the subject
of surveillance was not an absolute requirement of Article 8 of the
Convention. In this regard, a general complaints procedure to an
independent oversight body could compensate for non-notification.
72. The report also considered internal controls to be a “primary
safeguard”. In this regard, recruitment and training were key issues; in
addition, it was important for the agencies to build in respect for privacy and
other human rights when promulgating internal rules.
73. The report also considered the position of journalists. It accepted that
they were a group which required special protection, since searching their
contacts could reveal their sources (and the risk of discovery could be a
powerful disincentive to whistle-blowers). Nevertheless, it considered there
to be no absolute prohibition on searching the contacts of journalists,
provided that there were very strong reasons for doing so. It acknowledged,
however, that the journalistic profession was not one which was easily
identified, since NGOs were also engaged in building public opinion and
even bloggers could claim to be entitled to equivalent protections.
74. Finally, the report briefly considered the issue of intelligence
sharing, and in particular the risk that States could thereby circumvent
stronger domestic surveillance procedures or any legal limits which their
agencies might be subject to as regards domestic intelligence operations. It
considered that a suitable safeguard would be to provide that the bulk
material transferred could only be searched if all the material requirements
of a national search were fulfilled and this was duly authorised in the same
way as a search of bulk material obtained by the signals intelligence agency
using its own techniques.