CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
Article 8 compliant bulk interception regime (see also the report of the
Venice Commission, at paragraph 86 above, which similarly found that two
of the most significant safeguards in a bulk interception regime were the
authorisation and oversight of the process).
265. Turning first to authorisation, the Grand Chamber considers that
while judicial authorisation is an “important safeguard against arbitrariness”
it is not a “necessary requirement”. Nevertheless, bulk interception should
be authorised by an independent body; that is, a body which is independent
of the executive.
266. Furthermore, in order to provide an effective safeguard against
abuse, the independent authorising body should be informed of both the
purpose of the interception and the bearers or communication routes likely
to be intercepted. This would enable the independent authorising body to
assess the necessity and proportionality of the bulk interception operation
and also to assess whether the selection of bearers is necessary and
proportionate to the purposes for which the interception is being conducted.
267. The use of selectors – and strong selectors in particular – is one of
the most important steps in the bulk interception process, as this is the point
at which the communications of a particular individual may be targeted by
the intelligence services. However, the Court notes that the intervening
Government of the Netherlands have submitted that any requirement to
explain or substantiate selectors or search criteria in the authorisation would
seriously restrict the effectiveness of bulk interception (see paragraphs 228232 above). In the United Kingdom, the IPT found that the inclusion of the
selectors in the authorisation would “unnecessarily undermine and limit the
operation of the warrant and be in any event entirely unrealistic” (see Big
Brother Watch and Others, cited above, § 49).
268. Taking into account the characteristics of bulk interception (see
paragraphs 258 and 259 above), the large number of selectors employed and
the inherent need for flexibility in the choice of selectors, which in practice
may be expressed as technical combinations of numbers or letters, the Court
would accept that the inclusion of all selectors in the authorisation may not
be feasible in practice. Nevertheless, given that the choice of selectors and
query terms determines which communications will be eligible for
examination by an analyst, the authorisation should at the very least identify
the types or categories of selectors to be used.
269. Moreover, enhanced safeguards should be in place when strong
selectors linked to identifiable individuals are employed by the intelligence
services. The use of every such selector must be justified – with regard to
the principles of necessity and proportionality – by the intelligence services
and that justification should be scrupulously recorded and be subject to a
process of prior internal authorisation providing for separate and objective
verification of whether the justification conforms to the aforementioned
principles.
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