CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
which required providers of electronic communications services to have
recourse, first, to the automated analysis and real-time collection of traffic
and location data, and secondly, to the real-time collection of technical data
concerning the location of the terminal equipment used, where it was
limited to situations in which a Member State was facing a serious threat to
national security that was genuine and present or foreseeable, and where
recourse to such analysis may be the subject of an effective review by a
court or independent administrative body whose decision was binding; and
where recourse to the real-time collection of traffic and location data was
limited to persons in respect of whom there was a valid reason to suspect
that they were involved in terrorist activities and was subject to a prior
review carried out either by a court or by an independent administrative
body whose decision was binding.
IV. RELEVANT COMPARATIVE LAW AND PRACTICE
A. Contracting States
1. Overview
131. At least seven Contracting States (being Finland, France, Germany,
the Netherlands, Sweden, Switzerland and the United Kingdom) officially
operate bulk interception regimes over cables and/or the airways.
132 In one additional State (Norway) a draft law is being debated: if
enacted, it will also authorise bulk interception.
133. The bulk interception regime in the United Kingdom is described in
detail in the Court’s judgment in the case of Big Brother Watch and Others
v. the United Kingdom (nos. 58170/13 and 2 others, 25 May 2021).
134. As regards intelligence sharing agreements, at least thirty-nine
Contracting States have either concluded intelligence sharing agreements
with other States, or have the possibility for such agreements. Two
expressly prohibit and two expressly permit the State to ask a foreign power
to intercept material on their behalf. In the remaining States, the position on
this issue is not clear.
135. Finally, in most States the applicable safeguards are broadly the
same as for domestic operations, with various restrictions on the use of the
received data and in some cases an obligation to destroy them if they
became irrelevant.
2. Judgment of the German Federal Constitutional Court of
19 May 2020 (1 BvR 2835/17)
136. In this judgment, the Constitutional Court considered whether the
Federal Intelligence Service’s powers to conduct strategic (or “signals”)