CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
was dealing with surveillance of a different nature and scale from that
considered in previous cases. Nonetheless, targeted interception and bulk
interception are different in a number of important respects.
258. To begin with, bulk interception is generally directed at
international communications (that is, communications physically travelling
across State borders), and while the interception and even examination of
communications of persons within the surveilling State might not be
excluded, in many cases the stated purpose of bulk interception is to
monitor the communications of persons outside the State’s territorial
jurisdiction, which could not be monitored by other forms of surveillance.
For example, the German system aims only to monitor foreign
telecommunications outside of German territory (see paragraph 137 above).
259. Moreover, as already noted, the purposes for which bulk
interception may be employed would appear to be different. In so far as the
Court has considered targeted interception, it has, for the most part, been
employed by respondent States for the purposes of investigating crime.
However, while bulk interception may be used to investigate certain serious
crimes, Council of Europe member States operating a bulk interception
regime appear to use it for the purposes of foreign intelligence gathering,
the early detection and investigation of cyberattacks, counter-espionage and
counter-terrorism (see paragraphs 131-146 above).
260. While bulk interception is not necessarily used to target specified
individuals, it evidently can be – and is – used for this purpose. However,
when this is the case, the targeted individuals’ devices are not monitored.
Rather, individuals are “targeted” by the application of strong selectors
(such as their email addresses) to the communications intercepted in bulk by
the intelligence services. Only those “packets” of the targeted individuals’
communications which were travelling across the bearers selected by the
intelligence services will have been intercepted in this way, and only those
intercepted communications which matched either a strong selector or
complex query could be examined by an analyst.
261. As with any interception regime, there is of course considerable
potential for bulk interception to be abused in a manner adversely affecting
the right of individuals to respect for private life. While Article 8 of the
Convention does not prohibit the use of bulk interception to protect national
security and other essential national interests against serious external
threats, and States enjoy a wide margin of appreciation in deciding what
type of interception regime is necessary, for these purposes, in operating
such a system the margin of appreciation afforded to them must be narrower
and a number of safeguards will have to be present. The Court has already
identified those safeguards which should feature in a Convention-compliant
targeted interception regime. While those principles provide a useful
framework for this exercise, they will have to be adapted to reflect the
specific features of a bulk interception regime and, in particular, the
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