CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
traffic as data flows across the Internet. Both telephone calls and Internet
communications are collected. Prior to April 2017 the NSA acquired
Internet transactions that were “to”, “from”, or “about” a tasked selector. A
“to” or “from” communication was a communication for which the sender
or a recipient was a user of a section 702 tasked selector. An “about”
communication was one in which the tasked selector was referenced within
the acquired Internet transaction, but the target was not necessarily a
participant in the communication. Collection of “about” communications
therefore involved searching the content of communications traversing the
Internet. However, from April 2017 onwards the NSA have not been
acquiring or collecting communications that are merely “about” a target. In
addition the NSA stated that, as part of this curtailment, it would delete the
vast majority of previously acquired Upstream Internet communications as
soon as practicable.
145. Section 702 requires the Government to develop targeting and
minimization procedures which are kept under review by the FISC.
146. Executive Order 12333, which was signed in 1981, authorises the
collection, retention and dissemination of information obtained in the course
of a lawful foreign intelligence, counterintelligence, international narcotics
or international terrorism investigation. Surveillance of foreign nationals
under Executive Order 12333 is not subject to domestic regulation under
FISA. It is not known how much data are collected under Executive Order
12333, relative to those collected under section 702.
THE LAW
I. PRELIMINARY ISSUE: DATE OF ASSESSMENT
147. Before the Chamber the applicant sought a ruling on the
Convention compatibility of the relevant Swedish legislation as it applied
during three distinct periods (see paragraph 82 of the Chamber judgment).
The Chamber decided to focus on the Swedish legislation as it stood at the
time of its examination of the case (see paragraphs 96-98 of the Chamber
judgment).
148. Before the Grand Chamber, the applicant did not reiterate its
request concerning the three periods but relied in its submissions on, inter
alia, developments from 2018 and 2019 post-dating the Chamber’s
examination of the case.
149. The Government considered that, having regard to the Court’s case
law according to which “the content and scope of the “case” referred to the
Grand Chamber are ... delimited by the Chamber’s decision on
admissibility”, the Grand Chamber’s review should be limited to the
Swedish legislation as it stood at the time of the Chamber’s examination.
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