CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
limiting the risk of abuse and disproportionate interference with Article 8
rights.
324. In this regard the Court notes, first, that in so far as the intelligence
transmitted to foreign services is in the form of information obtained by the
FRA through its bulk interception activities, it is necessarily the product of
legally regulated procedures to which all relevant safeguards apply. This
includes the procedural guarantees, such as the authorisation by the Foreign
Intelligence Court and the supervision by the Inspectorate (see paragraphs
295-302 above and 345-353 below), and the substantive limitations, such as
those regarding the grounds on which interception of signals can be ordered,
the searching, in particular through selectors identifying an individual, and
all further examination (see paragraphs 284-288 and 303-316 above). As
already seen, the above mentioned procedures involve an assessment of
necessity and proportionality with regard to, in particular, Article 8
Convention rights. Therefore, the safeguards internally applicable in
Sweden in the process of obtaining the intelligence that may later be
transmitted to a foreign partner also limit, at least to a certain extent, the risk
of adverse consequences that may ensue after the transmission has taken
place.
325. The Court also notes that the supervision mechanisms provided for
under the Personal Data Processing Act, specifically tailored to the
protection of personal data, apply to all activities of the FRA (see
paragraphs 56 above).
326. In the Court’s view, despite the above considerations, the absence,
in the relevant signals intelligence legislation, of an express legal
requirement for the FRA to assess the necessity and proportionality of
intelligence sharing for its possible impact on Article 8 rights is a
substantial shortcoming of the Swedish regime of bulk interception
activities. It appears that, as a result of this state of the law, the FRA is not
obliged to take any action even in situations when, for example, information
seriously compromising privacy rights is present in material to be
transmitted abroad without its transmission being of any significant
intelligence value. Furthermore, despite the fact that the Swedish authorities
obviously lose control over the shared material once it has been sent out, no
legally binding obligation is imposed on the FRA to analyse and determine
whether the foreign recipient of intelligence offers an acceptable minimum
level of safeguards (see paragraph 276 above).
327. The Government’s answer to these concerns was essentially that
intelligence cooperation with foreign services inevitably functions on the
basis of a shared interest in preserving the secrecy of information and that
this practical reality limited the risks of abuse.
328. The Court finds the above-mentioned approach insufficient as a
safeguard. The Government have not identified any obstacles against setting
out clearly in domestic law an obligation for the FRA or another relevant
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