CENTRUM FÖR RÄTTVISA v. SWEDEN JUDGMENT
“145. Contrary to the applicant’s claim, there are several provisions regulating the
situations when intercepted data has to be destroyed. For example, intelligence must
be destroyed immediately if it 1) concerns a specific natural person and has been
determined to lack importance for the purpose of the signals intelligence, 2) is
protected by constitutional provisions of secrecy for the protection of anonymous
authors or media sources, 3) contains information shared between a criminal suspect
and his or her counsel and is thus protected by attorney-client privilege, or 4) involves
information given in a religious context of confession or individual counselling,
unless there are exceptional reasons for examining the information ... Moreover, if
communications have been intercepted between a sender and receiver both in Sweden,
despite the ban on the interception of such communications, they must be destroyed as
soon as their domestic nature has become evident ... Also, where a temporary permit
granted by the FRA has been revoked by the Foreign Intelligence Court, all
intelligence collected on the basis of that permit must be immediately destroyed ...
146. Although the FRA may maintain databases for raw material containing
personal data up to one year, it has to be kept in mind that raw material is unprocessed
information. That is, it has yet to be subjected to manual treatment. The Court accepts
that it is necessary for the FRA to store raw material before it can be manually
processed. At the same time, the Court stresses the importance of deleting such data as
soon as it is evident that it lacks pertinence for a signals intelligence mission.”
339. The Grand Chamber endorses this analysis in principle but also
considers it important to point to the fact that it has insufficient information
about certain aspects of the manner in which the rules on destruction of
intercept material are applied in practice.
340. Certainly, the Inspectorate’s supervision powers include the
monitoring of the FRA’s practice on destroying intercept material and this
aspect of its activities has already been the subject of inspections (see
paragraph 53 above). This is an important safeguard for the proper
application of the existing rules.
341. However, before the Grand Chamber the applicant pointed to the
fact that the limits on the storing of intercept material and the requirements
mentioned by the Chamber about destroying it did not apply to material
which does not contain personal data. The Government did not address this
issue specifically.
342. In the Court’s view, while there is clear justification for special
requirements regarding the destruction of material containing personal data,
there must also be a general legal rule governing the destruction of other
material obtained through bulk interception of communications, where
keeping it may affect, for example, the right of respect for correspondence
under Article 8, including concerning legal persons as the applicant. As a
very minimum, as also stressed by the Chamber, there should be a legal
requirement to delete intercepted data that has lost pertinence for signals
intelligence purposes. The Government have not shown that the Swedish
regulatory framework covers this aspect. However, while observing that
there is only a narrow set of circumstances in which it could happen that
none of the specific rules on destruction of intercept material noted in the