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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
the system (including the actual operation of the Foreign Intelligence
Court (“FIC”) itself) or the impact of the system on and/or operation of
safeguards in relation to any individual;
(b) provided that, in principle, the FIC should hold public hearings
but found that there has never been a public hearing, all decisions are
confidential and no information is disclosed to the public about the
number of hearings, the number of permits granted or rejected, the
reasoning of the court’s decisions or the amount or type of search terms
being used. While the FIC is assisted by the “privacy protection
representative” whose role it is to protect the “interests of the general
public” he or she does not appear on behalf of or represent the interests
of any affected individual. Furthermore, the privacy protection
representative cannot appeal against a decision by the FIC or “report any
perceived irregularities to the supervisory bodies”;
(c) was concerned with interception by the National Defence Radio
Establishment (“FRA”) on behalf of, and which, therefore, required
communication of the intercept material to, a much wider group “clients”
(“the Government, the Government Offices, the Armed Forces and, as
from January 2013, the Security Police and the National Operative
Department of the Police Authority”);
(d) provided for authorisation of interception for a greater number
(eight) of “purposes” (“1) external military threats to the country,
2) conditions for Swedish participation in international peacekeeping or
humanitarian missions or threats to the safety of Swedish interests in the
performance of such operations, 3) strategic circumstances concerning
international terrorism or other serious cross-border crimes that may
threaten essential national interests, 4) the development and proliferation
of weapons of mass destruction, military equipment and other similar
specified products, 5) serious external threats to society’s infrastructure,
6) foreign conflicts with consequences for international security,
7) foreign intelligence operations against Swedish interests, and 8) the
actions or intentions of a foreign power that are of substantial importance
for Swedish foreign, security or defence policy”);
(e) had similar difficulties to those identified in relation to the UK
regime to separate out non-external communications between a sender
and receiver within the respective State at the point of collection;
(f) allows for the communication of intercept product not only to
other states but also to “international organisations” (not further defined)
where that is “not prevented by secrecy and if necessary for the FRA to
perform its activities within international defence and security
cooperation” and “it is beneficial for the Swedish government or
Sweden’s comprehensive defence strategy” and without any provision
requiring the third country/international organisation recipient to protect