TrustHLT/LaCour huggingface dataset:
GR1 (Government): The data that is accessible to the FRA after the selection and filtering processes is subject to further refinement through automatic and manual means before it is available for analytical examination.
GR1 (Government): My government's position is that a secret surveillance measure is not applied until an analytical examination is possible, and that there is no interference with rights under Article 8 until that stage of the signals intelligence process.
GR1 (Government): The risk of the applicant's communications reaching this stage is virtually non-existent.
GR1 (Government): Therefore, the applicant can neither claim to be a victim of a violation of the convention, nor complain of an interference with its rights under Article 8 on the account of the mere existence of the signals intelligence regime.
GR1 (Government): To turn then to what applies to communications data.
GR1 (Government): No distinction is made under Swedish legislation between content and communications data.
GR1 (Government): A permit is required for the collection and processing of communications data as it is for content.
GR1 (Government): Communications data is largely used to discover threats or targets of which Sweden has previously been unaware, or as the United Kingdom puts it in its observations in the case heard this morning, to discover unknown unknowns.
GR1 (Government): Discovering previously unknown threats involves putting together various pieces of communications data to establish a picture through which a threat can be discovered.
GR1 (Government): This requires that the selectors used for interception of communications data are less specific than those used for interception of the content of communication.
GR1 (Government): It also requires that communications data is available for examination by an analyst over a period of time.
GR1 (Government): However, all searches in the available communications data must be justified in pursuit of a signals intelligent mission.
GR1 (Government): I also want to stress that when the purpose is to collect communications data with less specific selectors, no communication content is intercepted.
GR1 (Government): The applicant has held that collection of communications data constitutes an even greater intrusion than the collection of communications content.
GR1 (Government): I respectfully disagree.
GR1 (Government): Even when communications data is collected to provide a detailed picture of the communication patterns of a specific individual, which may reveal information that is sensitive and private, a greater degree of intrusion is always involved if the content of the individual's communication is examined.
GR1 (Government): Consequently, intercepting specific communications is, in general, more intrusive than obtaining communications data.
GR1 (Government): Turning now to the justification of any possible interference under Article 8, both parties agree that the Swedish signals intelligence regime has a basis in statutory law and is carried out in pursuit of a legitimate aim.
GR1 (Government): As for the safeguards, the third section of this court made an overall assessment and found that the Swedish signals intelligence regime provides adequate and sufficient safeguards to protect the public from arbitrariness and the risk of abuse.
GR1 (Government): In particular, the third section found that the scope of signals intelligence measures and the treatment of intercepted data are clearly defined in law, that the authorization procedure is detailed and entrusted to a judicial body, and that there are several independent bodies tasked with the supervision and review of the system.
GR1 (Government): For a detailed account of the safeguards in the Swedish signals intelligence regime, I would like to refer to my government's written observations, as well as my earlier observations about reasonable suspicion and a materiality threshold.
GR1 (Government): The applicant doesn't question the existence of most of the extensive safeguards in place in the Swedish signals intelligence regime.
GR1 (Government): But allow me, Madam President, to elaborate on a few points where my government's views diverge from that of the applicant.
GR1 (Government): If I first might address the issue of international cooperation, my government has described the legislation governing international cooperation in its written observations.
GR1 (Government): I will make one addition to illustrate that cooperation with other states is not used to circumvent domestic safeguards.
GR1 (Government): The applicant has provided the court with the FRA's general guidelines, which contain further restrictions on international cooperation.
GR1 (Government): These guidelines stipulate that international cooperation is conditional on the receiving state respecting Swedish legislation.
GR1 (Government): The Foreign Intelligence Inspectorate has a clear mandate to conduct controls of international cooperation.
GR1 (Government): So while it's correct that the FRA may amend its guidelines, such an amendment would not go unnoticed by the Swedish Foreign Intelligence Inspectorate.
GR1 (Government): The applicant holds that the Swedish Foreign Intelligence Inspectorate doesn't have the power to revoke a permit granted by the Foreign Intelligence Court if the inspectorate were to find it unlawful.
GR1 (Government): However, in the Swedish signals intelligence regime, any collection requires a permit from the Foreign Intelligence Court.
GR1 (Government): It would run counter to the foundations of the Swedish legal system if the Swedish Foreign Intelligence Inspectorate were to have the power to revoke a permit issued by the Foreign Intelligence Court.
GR1 (Government): This does not mean that the Swedish Foreign Intelligence Inspectorate is without any corrective means, however.
GR1 (Government): For instance, the inspectorate may decide that a specific collection must be terminated or that recordings or notes of collected data must be destroyed if it emerges during a control that the collection is incompatible with the permit issued under the Signals Intelligence Act.
GR1 (Government): Furthermore, the practical effectiveness of the inspectorate supervision has been determined by the National Audit Office.
GR1 (Government): In its 2015 report, the National Audit Office concluded that the inspectorate had been able to carry out its supervisory task effectively and that the FRA had taken the inspectorate's views and suggestions seriously and had implemented measures based on them.
GR1 (Government): The third section of this court was satisfied, but this showed that the inspectorate supervision is effective, not only in theory, but also in practice.
GR1 (Government): I would also like to correct some of the applicants' claims which might lead to misconceptions.
GR1 (Government): Firstly, after carrying out a control upon request by a natural or legal person, the inspectorate will inform the person of whether or not any improper collection has taken place.
GR1 (Government): Secondly, it follows from Swedish legislation that the Chancellor of Justice can and must act on any report from the Swedish Foreign Intelligence Inspectorate concerning deficiencies that may occur liability for damages for the state.
GR1 (Government): Thirdly, when a decision by the FRA not to disclose information is appealed, the Administrative Court of Appeal in Stockholm will gain access to all of the necessary classified documents.
GR1 (Government): The court will thus be able to carry out a full review of the FRA's decision.
GR1 (Government): Madam President, at this juncture, it's logical to say a few words concerning the alleged violation of Article 13.
GR1 (Government): I would mainly like to refer to my government's written observations.
GR1 (Government): Only one point needs to be made here today.
GR1 (Government): The applicant contends that a comparison with the United Kingdom's Investigatory Powers Tribunal illustrates that the Swedish remedies aren't as effective as they could be.
GR1 (Government): However, although it's not a court, the Swedish Foreign Intelligence Inspectorate's mandate doesn't differ greatly from that of the Investigatory Powers Tribunal.
GR1 (Government): Let me briefly reiterate the main features of the inspectorate's mandate.
GR1 (Government): The inspectorate carries out extensive supervision and controls at its own initiative or at the request of an individual.
GR1 (Government): The FRA is obliged to cooperate fully, and the inspectorate has full access to all necessary data, compilations, as well as all necessary documents, including internal regulations and general guidelines.
GR1 (Government): If any improper collection were to have taken place, the individual concerned would be informed.
GR1 (Government): The inspectorate also reports any improper collection or mismanagement to the relevant authorities, which could lead to damages for the individual or to criminal prosecution of FRA staff.
GR1 (Government): In addition, the inspectorate has the power to decide that data collection must cease or that data already collected must be removed.
GR1 (Government): Data already collected must be destroyed, which is regulated in Section 10 of the Signals Intelligence Act.
GR1 (Government): It's clear that the inspectorate's scrutiny provides further elucidation of the general operation of the signals intelligence regime.
GR1 (Government): This is well illustrated by the inspectorate's annual reports, which is why my government has provided the court with a translation of the main parts of the 2018 annual report.
GR1 (Government): Mr. President, I'd now like to respond to the questions
GR1 (Government): specifically posed by the court on the 26th of June, which you have invited my government to include in the oral observations.
GR1 (Government): The first question concerns the keeping of records and logs.
GR1 (Government): I would first like to clarify that the Swedish Data Protection Authority has not criticized the FRA for not keeping logs.
GR1 (Government): The now obsolete criticism from the Swedish Data Protection Authority concerned the absence of a sufficient follow-up of logs by the FRA.
GR1 (Government): Since the 1st of January 2018, the FRA has had a central function for the monitoring and follow-up of logs.
GR1 (Government): Previously, it was the responsibility of each system owner within the FRA to make sure logs were monitored.
GR1 (Government): Now, logs from all new IT systems being brought into production are sent to the central function.
GR1 (Government): For older systems, logs are being reformatted and rerouted to this central function as soon as practicable.
GR1 (Government): The FRA has reported its actions to the Swedish Data Protection Authority, which has not requested any further actions from the FRA and has closed this file.
GR1 (Government): Logs are kept throughout the entire signals intelligence process, from the collection of data to the final reporting, including, for example, communication to other parties and destruction.
GR1 (Government): All searches made by analysts are logged.
GR1 (Government): As specifically concerns searches in data compilations containing personal data, the log has to include the search terms 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.
GR1 (Government): In addition to the logs, records are kept of certain measures, such as decisions taken in the course of the signals intelligence process.
GR1 (Government): The second question from the court concerns whether it's correct to say that all safeguards against abuse apply equally to interception and treatment of both the content of communications and communications data.
GR1 (Government): The answer to that question is yes.
GR1 (Government): The third question concerns the mandate of the Swedish Foreign Intelligence Inspectorate to make legally binding decisions.
GR1 (Government): The Inspectorate conducts its controls through inspections and other investigations at the FRA.
GR1 (Government): If the Inspectorate were to find evidence of improper signals collection, the Inspectorate has the power to decide that the collection must cease, or that recordings or notes of collected data must be destroyed, as laid out in section 10 of the Signals Intelligence Act.
GR1 (Government): This is a crucial element of the signals intelligence regime.
GR1 (Government): Moreover, the Inspectorate is vested with additional important mandates to fulfill its supervisory function.
GR1 (Government): If in the course of its activities the Inspectorate were to observe a circumstance that may constitute an offense, the Inspectorate must report it to the Swedish Prosecution Authority or another competent authority according to section 15 of the Inspectorate's instructions.
GR1 (Government): Pursuant to the same provision, the Inspectorate must also, if it observes irregularities that may entail liability for the state with respect to a natural or a legal person, report this to the Office of the Chancellor of Justice.
GR1 (Government): If the Inspectorate discovers circumstances that the Swedish Data Protection Authority should be made aware of, the Inspectorate must report them to the authority.
GR1 (Government): The Inspectorate must then attach its investigation to the report and assist the authority as necessary after the report has been submitted.
GR1 (Government): As outlined, the Inspectorate does have important decision-making powers.
GR1 (Government): The fact that the authority to take legally binding decisions specifically regarding prosecution or damages does not lie with the Inspectorate ensures that the authorities with the right competence for those matters are engaged.
GR1 (Government): They receive the necessary information and assistance from the Inspectorate.
GR1 (Government): This is the most correct approach under the Swedish legal order, which comprises strong constitutional protection for the independence of authorities.
GR1 (Government): Furthermore, if the Inspectorate finds it necessary, it can also submit a report to the Swedish Data Protection Authority, which will then submit the opinions and proposed measures that result from its control activities to the government.
GR1 (Government): Madam President, the fourth question concerns the interception of signals over the airways and the differences between automated and non-automated interception of signals.
GR1 (Government): Let me first clarify that we're talking about signals in electronic form, that is, signals carried by electromagnetic waves.
GR1 (Government): Exactly the same type of signals that are carried by signals carriers may occur in signals carriers conveyed over the airways.
GR1 (Government): Interception over the airways may cover both communications data and content.
GR1 (Government): Collection of signals is always performed in accordance with a valid permit from the Foreign Intelligence Court.
GR1 (Government): Automated collection of signals is always used for cable-based traffic and is regularly used for airborne traffic.
GR1 (Government): Non-automated collection of airborne signals is primarily used when there are no automated alternatives for near real-time reporting of foreign military activities.
GR1 (Government): Non-automated collection of signals is typically done by an operator who listens in real time to foreign military radio traffic on a certain radio frequency or looks at a screen where the energy from a signal in electronic form is illustrated.
GR1 (Government): The task is then to register relevant parts of processing analysis and reporting.
GR1 (Government): The automated selection process is always made through selectors or categories of selectors authorized by the Foreign Intelligence Court.
GR1 (Government): Selectors or categories of selectors are also used for non-automated collection of signals.
GR1 (Government): A radio frequency is one example of a selector that needs to be authorized by the court.
GR1 (Government): The Foreign Intelligence Court thus examines applications regarding non-automated collection of signals over the airways, which includes making the fundamental proportionality assessment stipulated by law.
GR1 (Government): The court hence ensures the same level of control as for automated interception or interception of cable-based traffic.
GR1 (Government): As my government has stated previously, an interference with Article 8 rights cannot occur until the stage where the processed information is available for analytical examination or consideration.
GR1 (Government): In this regard, it makes no difference whether the signals are transmitted through cables or over the airways.
GR1 (Government): Consequently, there is no need for adjustment of the safeguards against abuse.
GR1 (Government): Should be added here that it's my government's view that non-automated collection of signals from military radio doesn't affect any Article 8 rights.
GR1 (Government): The fifth question, Madam President, concerns the FRA's development activities.
GR1 (Government): Firstly, I would like to make it clear that the development activities are not unlimited in scope.
GR1 (Government): They are as rigorously regulated and subject to supervision to the same extent as signals intelligence in general.
GR1 (Government): The provisions applicable to foreign intelligence are also applicable to development activities, including the requirement for tasking directives from the government and the requirement of a permit from the Foreign Intelligence Court.
GR1 (Government): Signals intelligence development activities do not generate any intelligence reports.
GR1 (Government): The FRA's development activities are fundamentally different from its foreign intelligence activities.
GR1 (Government): The purpose of the development activities is to ensure that the FRA is in a position to fulfill its task to collect signals to the eight specific foreign intelligence purposes stated in law.
GR1 (Government): The FRA would not be able to perform its task within foreign intelligence if it could not develop and adjust its tools, systems, and methods.
GR1 (Government): In order to do so, it is vital for the FRA to monitor the ever-changing signals environment, technical developments, and signals protection.
GR1 (Government): The content of the traffic is not of interest for development activities.
GR1 (Government): Rather, it is the flow of traffic and the systems through which information is transmitted which are of interest.
GR1 (Government): For example, in its development activities, the FRA monitors the flow of traffic between certain countries in order to identify signals carriers with relevant traffic.
GR1 (Government): Another purpose is to identify trends such as new types of signals and signals protection.
GR1 (Government): Although the sole purpose of the development activities is to maintain and develop the FRA's foreign intelligence capabilities, it would be far too restrictive if the development activities were only allowed for the eight purposes stated in law.
GR1 (Government): This follows from the fact that each signal's intelligence mission, be it foreign intelligence or development activities, is tailored for its specific purpose, including as regards collection.
GR1 (Government): Consequently, Madam President, the FRA's statutory right to conduct development activities is essential.
GR1 (Government): But let me reiterate that it is not unlimited in scope.
GR1 (Government): This part of the FRA's mandate is subject to an equal level of regulation and supervision as its foreign intelligence work.
GR1 (Government): Finally, let me wrap up these observations by reiterating a few of my government's essential arguments.
GR1 (Government): As stated previously, signals intelligence is a necessity for the security of any modern democracy today.
GR1 (Government): Constitutional frameworks and legal systems vary between states.
GR1 (Government): States, as the court knows, face different national security challenges.
GR1 (Government): That is why my government invites the court to reaffirm that contracting states should enjoy a wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security.
GR1 (Government): For the same reasons, it's the hope of my government that when examining a signals intelligence system in abstracto, the court will continue to make an overall assessment of the whole system.
GR1 (Government): As for the signals intelligence within foreign intelligence conducted by the FRA, as I have stated, it is of crucial importance to Sweden's national security.
GR1 (Government): The intelligence obtained through this narrowly tailored intelligence instrument cannot be secured by any other reasonable means.
GR1 (Government): An overall assessment of the Swedish signals intelligence regime shows that the system provides adequate and sufficient guarantees against arbitrariness and the risk of abuse.
GR1 (Government): In conclusion, madam president, I invite the court to declare the complaint inadmissible or, in any event, to hold that the present case reveals no violation of the convention.
GR1 (Government): Madam President, distinguished members of the court, thank you.
Angelika Nußberger (JudgeP): Vice President Spano, please.
Robert Spano (Judge): I would like to pose a question for clarification, mainly to the government, but I would, of course, invite the applicants to comment as well, if they so wish.
Robert Spano (Judge): The chamber in this case, at the end of paragraph 139, said as follows, judicial supervision performed by the Foreign Intelligence Court is of crucial importance in that it limits the FRA's discretion by interpreting the scope of mandating and performing signals intelligence.
Robert Spano (Judge): The applicants, of course, accept that the review process is important, but they claim before this court that it is, in any event, ineffective.
Robert Spano (Judge): And they make arguments in support of that claim.
Robert Spano (Judge): At paragraph 96 of the government's observations, it is stated that the FRA must submit an application for a permit in respect of each signal's intelligence mission.
Robert Spano (Judge): And in its applications, the FRA must specify not only the collection assignment in question and the intelligence requirements, but also the signal carriers to which access is requested and the selectors, or at least the categories of selectors that will be used.
Robert Spano (Judge): My clarification is as follows.
Robert Spano (Judge): The judicial permit procedure, these are the words used by Mrs. Hammarskjöld,
Robert Spano (Judge): this is a process of judicial permission at the outset, at the beginning of the process.
Robert Spano (Judge): And I want you to correct me in your answer if I'm explaining this or understanding this incorrectly.
Robert Spano (Judge): The FRA submits a request.
Robert Spano (Judge): And in this request, you have these elements, but set forth in a rather generic manner.
Robert Spano (Judge): For example, the types of selectors.
Robert Spano (Judge): In other words, we will be using, for example, emails or communications type data, date and time, and so forth.
Robert Spano (Judge): Subsequently, there is access to the data.
Robert Spano (Judge): The logs are generated.
Robert Spano (Judge): The analyst uses search terms.
Robert Spano (Judge): That part of the process is not in any shape or form subject to judicial control.
Robert Spano (Judge): That is after the Foreign Intelligence Court has come into play.
Robert Spano (Judge): But it is, according to your submissions, subject to the ex post oversight of the inspectorate.
Robert Spano (Judge): Am I understanding, in general, the way this works?
Robert Spano (Judge): So the judicial warrant or the judicial permit procedure is simply a general request explicating, in general terms, what the mission is and what kinds of selectors are used.
Angelika Nußberger (JudgeP): Judge Vehabović.
Faris Vehabović (Judge): I have one question.