CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
in Weber and Saravia v. Germany ((dec.), no. 54934/00, ECHR 2006-XI)
and Roman Zakharov (cited above), were relevant in the present case.
However, in their view, there should be no “reasonable suspicion”
requirement, having regard to the specific nature of bulk interception
operations, which are different from the secret surveillance of a specific
individual.
225. The French Government further considered that States enjoy a wide
margin of appreciation in operating bulk interception regimes and that the
assessment whether the applicable guarantees against abuse were sufficient
must always be made in concreto, having regard to the relevant legislation
seen as a whole. The Chamber in the present case had done exactly that,
noting that despite the fact that some improvements were desirable, the
Swedish system as a whole did not disclose significant shortcomings.
However, in the case of Big Brother Watch and Others (cited above), the
Chamber had applied a stricter scrutiny and unjustifiably found violations of
Articles 8 and 10 of the Convention. The French Government advocated
against the latter approach. In particular, they considered that a bulk
interception regime that did not include judicial pre-authorisation was
compatible with Article 8 as long as there was a mechanism for a posteriori
supervision by an independent body.
226. The French Government also expressed the view, supported by
references to case-law, that the interception and processing of
communications data interfered with privacy rights in a less significant
manner than the interception and processing of the content of
communications and that, therefore, should not be subject to the same
guarantees for the protection of the right to private life.
227. As regards intelligence sharing, the French Government stressed
the importance of secrecy and the fact that the procedures and guarantees
applied can vary from one State to another. They further elaborated on
several relevant criteria, in particular, in the context of receiving and using
intercepted data from foreign partners.
(c) The Government of the Kingdom of the Netherlands
228. The Government of the Kingdom of the Netherlands submitted that
bulk interception was necessary to identify hitherto unknown threats to
national security. In order to protect national security, intelligence services
needed the tools to investigate emerging threats in a timely and effective
manner. For this they needed the powers necessary to enable them to detect
and/or prevent not only terrorist activities (such as planning of attacks,
recruitment, propaganda and funding), but also intrusive State or non-State
actors’ cyber activities aimed at disrupting democracy (for example, by
influencing national elections or obstructing investigations by national and
international organisations). An example of this was the attempted hacking
of the investigation of the use of chemical weapons in Syria by the