CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
confidential. However, Swedish law provides for the mandatory presence of
a privacy protection representative at that court’s sessions, except in urgent
cases. The representative, who is a judge, a former judge or an attorney, acts
independently and in the public interest but not in the interest of any
affected private individual. He or she has access to all the case documents
and may make statements (see paragraph 34 above). In the Court’s view,
having regard to the imperative need for secrecy, in particular at the stages
of initial authorisation and conducting signals intelligence, the arrangement
described above contains relevant safeguards against arbitrariness and must
be accepted as an inevitable limitation on the authorisation procedure’s
transparency.
298. The Court further observes that when applying for a permit the
FRA must specify the need for the intelligence sought, the communications
bearers to which access is needed and the selectors – or at least the
categories of selectors – that will be used. This should lead to examination
whether the mission is compatible with applicable legislation, including the
eight purposes for which signals intelligence may be undertaken, and
whether the intelligence collection is proportional to the resultant
interference with private life (see paragraphs 30-33 above).
299. Importantly, section 3 of the Signals Intelligence Act requires that
the selectors must be formulated in such a way that the interference with
personal integrity is limited as far as possible (see paragraph 26 above),
which implies necessity and proportionality analysis. Compliance with this
requirement at the authorisation phase is within the competence of the
Foreign Intelligence Court. That court’s decision, taken in proceedings with
the participation of a privacy protection representative, is binding. This is an
important safeguard built into the Swedish bulk interception system.
300. The Court further observes that Swedish law provides for a form of
special prior authorisation of strong selectors in that the Foreign Intelligence
Court verifies whether, as required by section 3 of the Signals Intelligence
Act, the use of selectors directly related to a specific natural person is of
“exceptional importance” for the intelligence activities. The interpretation
of section 3 of the Signals Intelligence Act in the practice of the Foreign
Intelligence Court has not been explained to the Court, nor how section 3
interacts with section 5 of the same Act, which indicates that the judicial
authorisation may at least in some cases concern “categories of selectors”
rather than individual selectors. If such a case would occur, namely
individual selectors not being approved by the Foreign Intelligence Court,
the question would arise whether a process of prior internal authorisation
providing for separate and objective verification is in place (see paragraph
269 above). However, having regard to the independence of the Foreign
Intelligence Court and the applicable procedural guarantees in proceedings
before it, the “exceptional importance” standard at the authorisation stage is
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