CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
foreign intelligence gathering and the identification of new threats from
both known and unknown actors. When operating in this realm, Contracting
States have a legitimate need for secrecy which means that little if any
information about the operation of the scheme will be in the public domain,
and such information as is available may be couched in terminology which
is obscure and which may vary significantly from one State to the next.
237. While technological capabilities have greatly increased the volume
of communications traversing the global Internet, the threats being faced by
Contracting States and their citizens have also proliferated. These include,
but are not limited to, global terrorism, drug trafficking, human trafficking
and the sexual exploitation of children. Many of these threats come from
international networks of hostile actors with access to increasingly
sophisticated technology enabling them to communicate undetected. Access
to such technology also permits hostile State and non-State actors to disrupt
digital infrastructure and even the proper functioning of democratic
processes through the use of cyberattacks, a serious threat to national
security which by definition exists only in the digital domain and as such
can only be detected and investigated there. Consequently, the Court is
required to carry out its assessment of Contracting States’ bulk interception
regimes, a valuable technological capacity to identify new threats in the
digital domain, for Convention compliance by reference to the existence of
safeguards against arbitrariness and abuse, on the basis of limited
information about the manner in which those regimes operate.
(b) The existence of an interference
238. The Government considered that there was no interference with the
applicant’s Article 8 rights since it did not belong to a group of persons or
entities targeted by the relevant legislation and in view of the fact that it was
highly unlikely that the applicant’s communications would be subject to
analytical examination, there allegedly being no interference with Article 8
rights at the preceding stages of bulk interception of communications as it
functioned in Sweden.
239. The Court views bulk interception as a gradual process in which the
degree of interference with individuals’ Article 8 rights increases as the
process progresses. Bulk interception regimes may not all follow exactly the
same model, and the different stages of the process will not necessarily be
discrete or followed in strict chronological order. Nevertheless, subject to
the aforementioned caveats, the Court considers that the stages of the bulk
interception process which fall to be considered can be described as follows:
(a) the interception and initial retention of communications and related
communications data (that is, the traffic data belonging to the
intercepted communications);
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