CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
Organisation for the Prohibition of Chemical Weapons in The Hague.
Moreover, the increasing dependency of vital sectors on digital
infrastructures meant that such sectors, including water management,
energy, telecoms, transport, logistics, harbours and airports, were
increasingly vulnerable to cyber-attacks. The consequences of disruption in
such sectors would have a deep impact on society, far beyond the
substantial monetary damage.
229. A complicating factor in all of this was the development of new
means of digital communication and the exponential increase of data that
was transmitted and stored globally. In many instances the nature and origin
of a particular threat was unknown and the use of targeted interception was
not feasible. However, while bulk interception was not as tightly defined as
targeted interception, it was never completely untargeted. Rather, it was
applied for specific aims.
230. In the intervening Government’s view, there was no need for
additional or updated minimum requirement; the minimum safeguards;
those previously identified by the Court were sufficiently robust and “future
proof”. The additional requirements proposed by the applicant – in
particular, the requirement to demonstrate “reasonable suspicion” – would
unacceptably reduce the effectiveness of the intelligence services without
providing any meaningful additional protection of individuals’ fundamental
rights.
231. Furthermore, according to the intervening Government, it was still
relevant to distinguish between content and communications data, as the
content of communications was likely to be more sensitive than
communications data. The intervening Government also agreed with the
Chamber that it was wrong automatically to assume that bulk interception
constituted a greater intrusion into the private life of an individual than
targeted interception, since once targeted interception takes place it was
likely that all, or nearly all, of the intercepted communications would be
analysed. This was not true of bulk interception, where restrictions on the
examination and use of data determined the intrusiveness of the interception
on the individuals’ fundamental rights.
232. Finally, the intervening Government submitted that any requirement
to explain or substantiate selectors or search criteria in the authorisation
would seriously restrict the effectiveness of bulk interception in view of the
high degree of uncertainty regarding the source of a threat. Ex post
oversight provided sufficient safeguards.
(d) The Government of the Kingdom of Norway
233. The Norwegian Government submitted that, with regard to the
decision of States to introduce and operate some form of bulk interception
regime for national security purposes, the margin of appreciation had to be
wide. This was because intelligence services had to keep pace with the rapid
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