CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
intelligence on foreign telecommunications were in breach of the
fundamental rights contained in the Basic Law (Grundgesetz).
137. The regime in question involved the interception of both content
and related communications data and aimed only to monitor foreign
telecommunications outside of German territory. Such surveillance could be
carried out for the purpose of gaining information about topics determined
by the Federal Government’s mandate to be significant for the State’s
foreign and security policy. It could, however, also be used to target specific
individuals. The admissibility and necessity of the orders to conduct such
surveillance was controlled by an Independent Panel. According to the
Constitutional Court’s judgment, interception was followed by a multistage, fully automated filtering and evaluation process. For this purpose, the
Federal Intelligence Service used a six-digit number of search terms which
were subject to control by an internal sub-unit responsible for ensuring that
the link between the search terms employed and the purpose of the data
request was explained in a reasonable and comprehensive manner. After the
application of the automated filtering process, intercepted material was
either deleted or stored and sent for evaluation by an analyst.
138. The sharing of intercept material with foreign intelligence services
was accompanied by a cooperation agreement which had to include usage
restrictions and assurances to ensure that data were handled and deleted in
accordance with the rule of law.
139. The Constitutional Court held that the regime in question was not
compliant with the Basic Law. While it acknowledged the overriding public
interest in effective foreign intelligence gathering, it nevertheless
considered, inter alia, that the regime was not restricted to sufficiently
specific purposes; that it was not structured in a way that allowed for
adequate oversight and control; and that various safeguards were lacking,
particularly with respect to the protection of journalists, lawyers and other
persons whose communications required special confidentiality protection.
140. Regarding the sharing of intelligence obtained through foreign
surveillance, the court again found the safeguards to be lacking. In
particular, it was not specified with sufficient clarity when weighty interests
might justify data transfers. In addition, while the court did not consider it
necessary for a recipient State to have comparable rules on the processing of
personal data, it nevertheless considered that data could only be transferred
abroad if there was an adequate level of data protection and there was no
reason to fear that the information would be used to violate fundamental
principles of the rule of law. More generally, in the context of intelligence
sharing, the court considered that cooperation with foreign States should not
be used to undermine domestic safeguards and if the Federal Intelligence
Service wished to use search terms provided to it by a foreign intelligence
service it should first confirm the existence of the necessary link between
the search terms and the purpose of the data request and that the resulting
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