CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
data did not disclose a particular need for confidentiality (for example,
because they concerned whistle-blowers or dissidents). Although the court
did not exclude the possibility of the bulk transfer of data to foreign
intelligence services, it found that this could not be a continuous process
based on a single purpose.
141. Finally, the court found that the surveillance powers under review
also lacked an extensive independent and continual oversight serving to
ensure that the law was observed and compensating for the virtual absence
of safeguards commonly guaranteed under the rule of law. The legislator
had to provide for two different types of oversight, which had also to be
reflected in the organisational framework: firstly, a body resembling a court,
tasked with conducting oversight and deciding in a formal procedure
providing ex ante or ex post legal protection; and secondly, an oversight that
was administrative in nature and could, on its own initiative, randomly
scrutinise the entire process of strategic surveillance as to its lawfulness. In
the Constitutional Court´s view, certain key procedural steps would, in
principle, require ex ante authorisation by a body resembling a court,
namely: the formal determination of the various surveillance measures
(exemptions in cases of urgency were not ruled out); the use of search
terms, insofar as these directly targeted individuals who might pose a danger
and were thus of direct interest to the Federal Intelligence Service; the use
of search terms that directly targeted individuals whose communications
required special confidentiality protection; and sharing the data of
journalists, lawyers and other professions meriting special confidentiality
protection with foreign intelligence services.
B. The United States of America
142. The United States’ intelligence services operate the Upstream
programme pursuant to section 702 of the Foreign Intelligence Surveillance
Act (“FISA”).
143. The Attorney General and Director of National Intelligence make
annual certifications authorising surveillance targeting non-U.S. persons
reasonably believed to be located outside the U.S. They do not have to
specify to the Foreign Intelligence Surveillance Court (“FISC”) the
particular non-U.S. persons to be targeted, and there is no requirement to
demonstrate probable cause to believe that an individual targeted is an agent
of a foreign power. Instead, the section 702 certifications identify categories
of information to be collected, which have to meet the statutory definition of
foreign intelligence information. Authorised certifications have included
information concerning international terrorism, and the acquisition of
weapons of mass destruction.
144. Pursuant to the authorisation, the NSA, with the compelled
assistance of service providers, copies and searches streams of Internet