CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
person if selectors directly related to him or her have been used, except
where secrecy applies.
220. The Government also stated that no distinction is made in Swedish
law on bulk interception between content and communications data, all
safeguards applying equally to both. In practice, using communications data
to discover unknown threats requires putting together various pieces of such
data to establish a picture from which conclusions can be drawn. This
requires that the selectors used for intercepting communications data are
less specific than those used for the content of communications and that data
is available for examination by an analyst over a period of time. No other
differences exist.
221. In conclusion, the Government submitted that the impugned regime
on signals intelligence within foreign intelligence reveals no significant
shortcomings in its structure and operation. The risk of interference with
privacy is minimised and sufficient guarantees against arbitrariness are in
place. The regime as a whole is lawful and proportionate to the legitimate
aim of protecting national security.
3. Third intervening parties
(a) The Government of the Republic of Estonia
222. The Estonian Government considered that the criteria for the
assessment of the Convention compatibility of secret surveillance regimes,
as developed in the Court’s case-law, needed adaptation to reflect the
specific nature of bulk interception of communications as a foreign
intelligence activity. The differences between such an activity and
surveillance in the criminal investigation context must be taken into
account. Foreign intelligence aims at detecting threats to national security
and is therefore broader in its scope. Also, it is a long-term activity that
requires a higher level of secrecy over a very long period of time.
223. On this basis, the Estonian Government, referring to the criteria for
assessment used in Roman Zakharov (cited above, § 231), agreed with the
Chamber that the “nature of the offences” and “reasonable suspicion”
criteria were not appropriate and stated that, instead of the “categories of
people” criterion, domestic law should indicate “the fields in which bulk
interception of cross-border communications may be used to gather
intelligence”. As to notification of affected persons, in the view of the
intervening Estonian Government no such obligation should be imposed
because of the importance of secrecy in foreign intelligence.
(b) The Government of the French Republic
224. The French Government, emphasising the importance of bulk
interception activities for the identification of unknown threats, considered
that the criteria for assessing their Convention compatibility, as developed
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