CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
delimited the scope of the surveillance activities, the mandate given to the
competent authorities in this regard and the manner of its exercise.
207. As regards the FRA’s development activities, the Government
emphasised that they are rigorously regulated and subject to all substantive
and procedural requirements applicable to signals intelligence in general. In
development activities, which are crucial to permit the FRA to adjust its
tools, systems and methods to an ever-changing signals environment and
technical developments, it is the flow of traffic and the systems through
which information is transmitted that are of interest. To maintain the FRA’s
capabilities, it would be far too restrictive if development activities were
only allowed for the eight purposes that circumscribe signals intelligence.
208. There was, furthermore, a prior authorisation procedure before the
Foreign Intelligence Court, whose president is a permanent judge and the
other members are appointed by the Government on four-year terms. In the
exceptional cases of urgency when the FRA may itself grant a signals
intelligence permit, that court must be immediately notified and it may
modify or revoke the permit, with the consequence that collected data must
be destroyed. If the permit granted by the FRA, not by the court, contains
access to certain communications bearers, such access can only be realised
by the Swedish Foreign Intelligence Inspectorate which will have the
possibility to estimate the relevant legal aspects.
209. The Foreign Intelligence Court holds public hearings except when
required by secrecy considerations. The Government submitted that the
latter limitation on transparency was justified and was compensated by
safeguards, such as the presence of a privacy protection representative at the
court’s private hearings. The representative defends the public interest, is
given full access to case documents and can make statements. He or she is a
permanent judge or a former permanent judge or a member of the Swedish
Bar Association.
210. The Government emphasised that the FRA must seek a permit in
respect of each mission and must specify the assignment, the bearers to
which access is sought and the selectors or at least the categories of
selectors to be used. The court examines not only the formal lawfulness but
also the proportionality to the expected interference. The permit must
specify all parameters, including the conditions needed to limit such
interference.
211. As regards safeguards on the duration of the interception, Swedish
law limited it to six months, subject to extension following full review by
the Foreign Intelligence Court. Also, interception is discontinued if a
tasking directive is revoked or expires, if interception is not in accordance
with the permit and if it is no longer needed.
212. Adequate safeguards also exist in respect of the procedures for
storing, accessing, examining, using and destroying intercepted data. These
safeguards include limiting processing to what is adequate and relevant to