CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
10. The FIC’s oversight encompasses assessment of the specific
“bearers” (signal carriers) to which the FRA will have access, as well as the
“selectors” (search terms) and the categories of selectors that will be used
for the automatic collection of data, and the duration of the surveillance
permit. But there is no requirement that the permit must be cancelled if the
collection of the communication ceases to be necessary21 or that intercepted
material which does not contain personal data must be destroyed within a
certain period22. Nor is there any requirement that the FIC verify the
existence of reasonable suspicion in relation to any person targeted. It is true
that strong selectors directly relating to a specific person may be used if this
is of “exceptional importance” for the intelligence activities23, but this
restriction only applies to the automated collection of data, not to the
selectors used to search the bulk collected data. This means that the law
allows for a large degree of discretion in the collection and search of
communications and related communications data by the FRA, especially
when the FIC’s permit refers to categories of selectors24. The problem of a
lack of specificity with regard to the selectors seems to be even more
serious regarding the selectors used for related communications data25.
11. Furthermore, there is no evidence that the FIC can and does assess
the need to protect privileged communications, including situations where
and independent oversight mechanisms over intelligence-sharing of personal data are put in
place” (United Nations Human Rights Committee Concluding observations, cited above,
§ 37). This is not an isolated case in Europe. The European Union’s Fundamental Rights
Agency (FRA of the EU) identified the following shortcomings in the EU states: “the
findings also identified limits to full independence, with some oversight bodies remaining
strongly dependent on the executive: the law does not grant them binding decision-making
powers, they have limited staff and budget, or their offices are located in government
buildings.” (FRA, Surveillance by intelligence services: fundamental rights safeguards and
remedies in the EU, volume II: Field perspectives and legal updates, 2017, p. 11).
21 The majority neglect the importance of this flaw, confusing the “existence of supervision
mechanisms” with the provision of a specific substantive guarantee that mandates the
cessation of unnecessary interception measures (see paragraph 336 of this judgment).
22 The majority consider the rules pertaining to the destruction of intercepted material
containing personal data sufficiently clear“ as a whole”, ignoring the regulatory omission
regarding material which does not contain personal data (see paragraph 344 of this
judgment).
23 I find it puzzling that the majority are willing to accept that the “exceptional importance
standard” for the authorisation of strong selectors is “capable of providing relevant
enhanced protection” when they have no clue about how the FIC applies this standard (see
paragraph 300 of this judgment). This amounts to a blank cheque for the FIC and to the
Government.
24 The majority rightly acknowledge this, admitting that “it may be difficult” to appreciate
the proportionality aspect when only categories of selectors are specified in the FRA’s
request for a permit (see paragraph 301 of this judgment). That is precisely why bulk
interception based on categories of selectors should not be admissible (see my separate
opinion in Big Brother Watch and Others, cited above).
25 As concluded by the report of the Signals Intelligence Committee (see paragraph 78 of
this judgment) and acknowledged by the Government (see paragraph 220 of this judgment).