CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
among other techniques, cryptoanalysis, structuring and language
translation. Thereafter, the processed information is analysed by an analyst
in order to identify intelligence therein. The next step consists in the
elaboration of a report which is disseminated to selected recipients of
foreign intelligence (see paragraphs 18 and 29 above).
307. In the Court’s view, it is significant that at the examination stage
the FRA is under an obligation to discard intercepted domestic
communications immediately once identified (see paragraph 38 above).
308. Despite the fact that the distinction between domestic and foreign
communications may not be waterproof and the prohibition to intercept the
former apparently cannot prevent it from happening in the automatic stage
of capturing signals, the exclusion of domestic traffic from the scope of
signals intelligence must be seen as a significant limitation on the
authorities’ discretion and as a safeguard against abuse. The limitation in
question sets the framework within which the authorities are allowed to
operate and provides the existing pre-authorisation, supervision and control
mechanisms with an important criterion related to the operation’s
lawfulness and the protection of the rights of individuals. In particular, it is
clear that the choice of communications bearers and categories of selectors
– which is subject to control by the Foreign Intelligence Court (see
paragraph 30 above) – must be in conformity with the above-mentioned
exclusion of domestic communications.
309. As already noted above (see paragraph 300), the practice of the
Foreign Intelligence Court regarding the pre-authorisation of selectors or
categories of selectors directly linked to identifiable individuals has not
been presented to the Court. The Court notes, however, the Government’s
position that logs and records are systematically kept by the FRA
throughout the process, from the collection of data to the final reporting,
communicating to other parties and destruction. All searches made by
analysts are recorded. When the search is made in a data compilation
containing personal data the record includes the selectors used, the time, the
name of the analyst and the justification for the search, including the
detailed tasking directive which is the reason for the search. In addition to
the logs, records are kept of decisions taken in the course of the signals
intelligence process.
310. The applicant did not dispute the above but considered that (i) it
had not been shown that logs were sufficiently detailed and (ii) the FRA’s
record-keeping practices, not being prescribed by law, were at the mercy of
internal procedures and discretion.
311. The Court considers that the obligation to keep logs and detailed
record of each step in bulk interception operations, including all selectors
used, must be set out in domestic law. The fact that in Sweden it appears in
internal instructions only is undoubtedly a shortcoming. However, having
regard, in particular, to the existence of oversight mechanisms covering all
79