TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): It is that the Swedish government may readily transfer intercepted communication to foreign governments and international organizations with virtually no legal safeguards for privacy or integrity of the affected persons.
AP1 (Applicant): There is no legal obligation for the government to ensure that transferred information is afforded adequate protection.
AP1 (Applicant): There is no obligation for the government to impose appropriate safeguards, such as limiting the subsequent use of that information.
AP1 (Applicant): In fact, there is no legal obligation for the government to have any regard for the privacy implications of its transfers at all.
AP1 (Applicant): The government has afforded two arguments in defense of what we say is a glaring absence in its legal framework.
AP1 (Applicant): The first argument is that international transfers are appropriately restricted by law.
AP1 (Applicant): It says that transfers to foreign governments and international organizations may only occur where the purpose is of benefit to the Swedish government and Sweden's defense strategy.
AP1 (Applicant): The FRA may only make such international transfers if they do not harm Sweden's interests, enhance FRA's defense and security cooperation, and the information is not protected by secrecy.
AP1 (Applicant): Even when such information is covered by secrecy, the government may nevertheless make such international transfers so long as they are necessary for the activities of the FRA.
AP1 (Applicant): With respect, these limitations are vague and entirely irrelevant to safeguarding individual rights.
AP1 (Applicant): They essentially allow international transfers to be made at any time governed by little more than broadly defined notions of national interest.
AP1 (Applicant): They do little to restrict the discretion of the government, and they do nothing to require that the interests of the affected person be taken into consideration.
AP1 (Applicant): This is the conclusion that the chamber reached in its judgment at paragraph 150, and it is the conclusion that we invite this court to make also.
AP1 (Applicant): The government's second argument was that its approach to international transfers is consistent with its international obligations, namely those contained in the additional protocol to the Council of Europe Convention for the Protection of Individuals with regard to automatic processing of personal data, to which Sweden is a party.
AP1 (Applicant): This additional protocol states that parties must ensure an adequate level of protection for personal transfers to third countries, but that derogation is permitted where there are legitimate prevailing interests, especially important public interests.
AP1 (Applicant): What the government fails to mention, however, is that this derogation is designed to be construed narrowly.
AP1 (Applicant): And warrants decisions falling under it to be made on a case-by-case basis.
AP1 (Applicant): The explanatory report to the additional protocol from the 8th of November, 2001 states, and I quote in full from paragraph 31 of the report, relevant domestic law provisions must respect the principle inherent in European law that clauses making exceptions are interpreted restrictively, so that the exception does not become the rule.
AP1 (Applicant): And yet Sweden's blanket reliance on this derogation does precisely that.
AP1 (Applicant): We say that such an approach is not consistent with the additional protocol, and importantly, is not compatible with Article 8 of the convention.
AP1 (Applicant): The chamber clearly noted the shortcomings of the Swedish system with international transfers, stating that it lacked specification, and give some concern with respect to the possible abuse of the rights of individuals.
AP1 (Applicant): The chamber went on, however, not to find a violation of the convention, stating that the supervisory elements of the Swedish framework counterbalanced these shortcomings.
AP1 (Applicant): With deep respect to the chamber, we would strongly disagree that the supervisory elements are somehow capable of remedying these particular shortcomings with respect to international transfers.
AP1 (Applicant): Not only are the Swedish supervisory functions inadequate, as we have just described, as we've, but crucially, for this particular aspect, they do not properly cover Sweden's international transfer activities.
AP1 (Applicant): The FRA is merely required to inform the inspectorate of the principles governing its foreign intelligence cooperation.
AP1 (Applicant): It is required to tell the inspectorate to which countries or organizations it transfers data, and to provide general details of operations.
AP1 (Applicant): Crucially, the inspectorate is only capable of monitoring the FRA's compliance with existing laws.
AP1 (Applicant): As the Venice Commission observed in its 2015 report, if the boundaries of discretion are excessively wide, even the most stringent policing of them does little to safeguard against abuse.
AP1 (Applicant): Our position, therefore, is that Sweden's procedures for international transfers simply cannot constitute a practice compatible with the convention.
AP1 (Applicant): For this, a court to say otherwise would open up a dangerous lacuna in the protections afforded by the convention, where member states could simply outsource otherwise unlawful and intrusive interception activities without any legal consequence.
AP1 (Applicant): We accept the important role of intelligence sharing arrangements in promoting security and mutual intelligence interests.
AP1 (Applicant): But such arrangements cannot take place without proper limits or sufficient safeguards for fundamental rights.
AP1 (Applicant): Any one of these five key deficiencies that we have highlighted would, in and of itself, constitute a breach of the convention.
AP1 (Applicant): These deficiencies are not, with respect to the chamber, merely signs that there is room for improvement.
AP1 (Applicant): These are critical shortcomings on which this court should find a violation and require the government to make appropriate adjustments to its legal framework.
AP1 (Applicant): Finally, I shall make some brief remarks on the question of admissibility.
AP1 (Applicant): The government has suggested that the applicant lacks victim status, rendering this case inadmissible.
AP1 (Applicant): We say that the test for victim status laid down in Zakharov and in Kennedy is clearly fulfilled in the present case.
AP1 (Applicant): As the court affirmed in Zakharov, an applicant can establish victim status due to the mere existence of secret surveillance where two criteria are met.
AP1 (Applicant): The first requirement is that the applicant falls under the scope of the law, either by belonging to a particular targeted group or where the legislation directly affects all users of communication services.
AP1 (Applicant): As we have outlined, the Swedish Signals Intelligence Act is extremely broad.
AP1 (Applicant): It permits the potential interception of any communications traveling along the cables that cross the Swedish border or that are transmitted via the airways.
AP1 (Applicant): This scope directly affects all users of such communication services, as it allows for any such communications to potentially be intercepted.
AP1 (Applicant): The government contests that the legislation directly affects all users, claiming that only communications relating to foreign intelligence and thus foreign circumstances are allowed to be intercepted.
AP1 (Applicant): We say this argument is flawed for two reasons.
AP1 (Applicant): Firstly, we would point out that the Signals Intelligence Act also permits interception for development purposes, which not necessarily need to relate to foreign intelligence or foreign circumstances.
AP1 (Applicant): Secondly, virtually all users of the communication services may engage in cross-border communications, either deliberately by contacting a foreign recipient or inadvertently through communicating with an online server that is located abroad.
AP1 (Applicant): No user of these communications can guarantee that they will never be subject to interception.
AP1 (Applicant): The law, therefore, has a potential chilling effect on any user of these communications by its very existence and is of direct effect to all users of the communications falling under its scope.
AP1 (Applicant): The second requirement is that there is no effective remedy at the national level.
AP1 (Applicant): And as I have described, there is no effective remedy at the national level for the applicant nor for anyone else that suspects that they may have been subject to balkan deception by the FRA.
AP1 (Applicant): In these circumstances, therefore, the applicant must be able to have its case examined by this court.
AP1 (Applicant): To rule otherwise would depart from the ruling in Zakharov and deprive the applicant of any meaningful recourse for the protection of its rights.
AP1 (Applicant): This case is not only an opportunity for the applicant to seek protection of its rights, but for the grand chamber to make clear for all member states whether and on what terms large-scale balkan deception may be permitted under the convention.
AP1 (Applicant): It is our position that if far-reaching surveillance technology such as this is to be permitted, it must be infused to the fullest extent possible with a respect for privacy and protection of correspondence.
AP1 (Applicant): Privacy is an oxygen for other human rights, lingering invisibly, yet indispensably, breathing life into liberty, expression, and dignity.
AP1 (Applicant): These rights underpin the core democratic ideals that are at the heart of the convention and at the mission of the Council of Europe.
AP1 (Applicant): These must be protected even when, and perhaps especially when, we counter threats from those that do not share our values.
AP1 (Applicant): It is this core philosophy that we ask the court to uphold.
Angelika Nußberger (JudgeP): I call Mrs. Hammarskjöld for the government.
GR1 (Government): Madam President, distinguished members of the court, the case before the court touches upon issues which are of crucial importance to the security of any modern democracy.
GR1 (Government): This morning, the court held a hearing in a case concerning the United Kingdom's signals intelligence system.
GR1 (Government): This afternoon, the court is asked to turn to a different system, the Swedish regime concerning signals intelligence within foreign intelligence.
GR1 (Government): There are common denominators between the two, but there are also differences.
GR1 (Government): Allow me, therefore, at the outset to mention three distinct features of the Swedish system.
GR1 (Government): Firstly, the Swedish regime exclusively concerns national security issues in the context of foreign intelligence and does not permit the use of signals intelligence to investigate criminal offenses.
GR1 (Government): Secondly, the Swedish signals intelligence regime includes a judicial permit procedure.
GR1 (Government): Thirdly, the signals intelligence conducted by the National Defense Radio Establishment, which I will refer to as the FRA, is supervised by a special control authority, the Swedish Foreign Intelligence Inspectorate.
GR1 (Government): Although not a court, the inspectorate is an independent control authority vested with the necessary powers and competence to exercise effective controls.
GR1 (Government): Madam President, the two cases before the Grand Chamber today provide the court with a unique opportunity to confirm what standards should apply to regimes established in order to acquire intelligence that is critical for the protection of national security.
GR1 (Government): It is the hope of my government that the court will reaffirm that such regimes may differ but still meet the convention standards.
GR1 (Government): A year ago, the third section of this court found that the Swedish regime provides adequate and sufficient safeguards against arbitrariness and the risk of abuse and that the structure and operation of the system are proportionate to the legitimate aim of national security.
GR1 (Government): The third section looked at the increased sophistication of communications, technology, as well as the present day threats posed by global terrorism and acknowledged the importance of a signals intelligence system in order to discover such threats.
GR1 (Government): It found that the Swedish signals intelligence regime minimizes the risk of interference with privacy and compensates for the lack of openness inherent in any secret surveillance system.
GR1 (Government): My government argues that this analysis of the Swedish signals intelligence system is correct.
GR1 (Government): Madam President, in its written observations, my government has described in detail why the Swedish signals intelligence regime meets the convention standards.
GR1 (Government): I'd like to take the opportunity here today to elaborate on a few points.
GR1 (Government): I will first turn to the issue of the contracting state's margin of appreciation in this context.
GR1 (Government): I will then move on to describe the strictly limited scope of the signals intelligence regime and why there cannot be a requirement of reasonable suspicion.
GR1 (Government): I will address the issue of the applicant's victim status and the possible interference with the rights under Article 8.
GR1 (Government): I will then turn to the justification for any such interference.
GR1 (Government): I will also say a few words concerning the alleged violation of Article 13.
GR1 (Government): Finally, I will respond to the specific questions posed by the court in its letter of 26 June.
GR1 (Government): Turning first to the importance of the contracting state's margin of appreciation, the applicant has argued that the court should find that signals intelligence regimes, such as the Swedish one, are inherently incompatible with the convention.
GR1 (Government): The consequences of such a finding would be incalculable.
GR1 (Government): Reliable intelligence collection capabilities are of critical importance to national security interests of democratic states today.
GR1 (Government): This is something that all the intervening governments have emphasized.
GR1 (Government): Contracting states face different challenges as the nature and level of threats vary.
GR1 (Government): That is why contracting states must enjoy a wide margin of appreciation in choosing how best to achieve the legitimate aim of protecting national security.
GR1 (Government): This court has expressly recognized this fact on several occasions with reference to the current threats facing many contracting states.
GR1 (Government): The operation of a signals intelligence regime must, of course, provide sufficient safeguards against arbitrariness and possible abuse.
GR1 (Government): However, such safeguards cannot undermine the effectiveness of regimes established in order to obtain intelligence that is essential to the protection of the lives and the safety of the public.
GR1 (Government): The court's practice has struck such a balance.
GR1 (Government): Since constitutional frameworks and legal systems vary between contracting states, there is no one single blueprint for how these safeguards should be designed.
GR1 (Government): Therefore, when the court is to examine a signals intelligence regime in abstracto, an overall assessment needs to be made of the whole system in order to evaluate whether there are sufficient safeguards in place to protect the public from abuse.
GR1 (Government): If there are robust safeguards in some aspects of a system, the state must be afforded greater discretion in other aspects.
GR1 (Government): My government trusts that the court will continue its balanced approach, and it will not try to carve out a detailed mold that all systems must fit into.
GR1 (Government): Madam President, the two cases before the Grand Chamber today will make it clear to the court that signals intelligence is an indispensable tool in the protection of national security.
GR1 (Government): I will now move on to describe the strictly limited scope of the Swedish signals intelligence regime.
GR1 (Government): The purpose of the signals intelligence conducted by the FRA is to obtain information and identify phenomena of relevance for foreign intelligence.
GR1 (Government): The FRA provides the government and other Swedish authorities with unique knowledge of foreign developments, which is essential to protecting Sweden from national security threats.
GR1 (Government): Typical examples of data being processed in signals intelligence concern the use of a single-signal weapon, and the use of a single-signal weapon is a key element of the intelligence system.
GR1 (Government): The data being processed in signals intelligence concern foreign military movements, military exercises, and tests of military weapon systems in the vicinity of Sweden, international terrorism, strategic information of significance for Sweden's foreign and defense policy, and international relations, but also personal data about individuals working in other states' intelligence requirements that cannot be satisfied by any other means.
GR1 (Government): Therefore, signals intelligence also fulfills the government's positive obligation to protect the lives and the safety of the public.
GR1 (Government): The applicant claims that the Swedish signals intelligence regime is a large-scale interception regime, and that the government covertly monitors all cross-border communications.
GR1 (Government): This is grossly inaccurate.
GR1 (Government): On the contrary, signals intelligence within foreign intelligence may only be conducted for the specific purposes and under the specific terms outlined in law, and using specifically formulated selectors in order to only intercept the relevant signals.
GR1 (Government): Madam President, signals intelligence may only concern foreign circumstances and may only be conducted by one authority, the FRA.
GR1 (Government): It must be conducted in accordance with the government's annual tasking directives and the detailed tasking directives issued by those authorities listed in the legislation.
GR1 (Government): Any collection requires a permit from the Foreign Intelligence Court, which ensures that all these prerequisites are satisfied.
GR1 (Government): The operation of the signals intelligence regime is therefore a narrowly tailored instrument.
GR1 (Government): My government has explained throughout this case that under Swedish law, signals intelligence within foreign intelligence may not be used to investigate criminal offenses.
GR1 (Government): Nonetheless, the applicant has insisted on trying to give the court the impression that the signals intelligence system could be used for such purposes.
GR1 (Government): Let me once again clarify that the legislation on signals intelligence does not permit the use of signals intelligence to investigate criminal offenses.
GR1 (Government): As stated in my government's written observations, it's the duty of the Foreign Intelligence Court to ensure this.
GR1 (Government): The Swedish Foreign Intelligence Inspectorate also has important supervisory functions in this regard.
GR1 (Government): Hence, the system guarantees that signals intelligence is not used to circumvent regulations concerning coercive measures under criminal law, for example.
GR1 (Government): It's a different matter entirely, Madam President, that signals intelligence may, under certain circumstances, be used to collect information that is provided to the Swedish Security Service and the National Operations Department of the Swedish Police Authority, the NOA, within their intelligence activities.
GR1 (Government): This information may concern, for example, foreign powers intelligence operations against Sweden, external cyber threats, and international terrorism.
GR1 (Government): The Swedish Parliament has recently adopted legislation giving the Swedish Security Service and the NOA the possibility to receive intelligence reports from the FRA within their intelligence activities, regardless of whether a preliminary investigation is ongoing.
GR1 (Government): The new act clearly stipulates that reported data may not be used to investigate criminal offenses.
GR1 (Government): It also states that individuals' officials' access to reported intelligence must be restricted to what is necessary to perform their duties.
GR1 (Government): The Swedish Commission on Security and Integrity Protection will be responsible for supervising the authorities' application of the new act.
GR1 (Government): Consequently, to sum up, it is clear that it will still not be permitted to use signals intelligence within foreign intelligence to investigate criminal offenses, and that the new legislation contains adequate and sufficient safeguards against abuse.
GR1 (Government): Madam President, another point which has been raised is whether there should be a requirement of reasonable suspicion in the context of signals intelligence within foreign intelligence.
GR1 (Government): There cannot and there should not be any such requirement.
GR1 (Government): On this point, all the intervening governments agree.
GR1 (Government): The applicant, however, has argued that if there is no such requirement, the court would make an unreasoned distinction between law enforcement and foreign intelligence.
GR1 (Government): But there are crucial differences between foreign intelligence and law enforcement that justify such a distinction.
GR1 (Government): Let me illustrate.
GR1 (Government): Foreign intelligence is a proactive activity, aiming at finding or identifying an external threat to Sweden, regardless of whether or not that threat involves a criminal act.
GR1 (Government): In contrast, law enforcement, in the sense that is relevant in this context, is about investigating a crime where a threat has already materialized.
GR1 (Government): A requirement of reasonable suspicion would render the operation of the Swedish regime concerning signals intelligence within foreign intelligence impossible, as it concerns states and other actors whose actions are not necessarily criminal.
GR1 (Government): Also, the purposes of signals intelligence within foreign intelligence are mainly to look for and identify hitherto unknown dangers, while at the same time monitoring known ones.
GR1 (Government): Moreover, a tasking directive for signals intelligence may not solely target a specific individual.
GR1 (Government): In addition, any use of selectors that may be linked to specific individuals is only permitted by the Foreign Intelligence Court if it is necessary and proportionate.
GR1 (Government): As such, the signals intelligence regime already provides the necessary level of protection corresponding to a materiality threshold, as requested by the applicant.
GR1 (Government): I will now turn to the applicant's victim status and the issue of a possible interference with the rights under Article 8.
GR1 (Government): Can the applicant claim to be a victim of a violation of the convention, occasioned by the mere existence of the Swedish legislation on signals intelligence within foreign intelligence?
GR1 (Government): The short answer, Madam President, is no.
GR1 (Government): However, for the sake of clarity, let me elaborate.
GR1 (Government): The signals intelligence process contains several stages designed to reduce the data ultimately available for analytical examination to a manageable minimum.
GR1 (Government): First, signals intelligence may not be conducted on domestic traffic within Sweden.
GR1 (Government): Since the majority of purely domestic electronic communication signals will not pass the handover points in cross-border cables, such signals will not be collected by the FRA.
GR1 (Government): The signals that pass through the signals carriers covered by a permit are subject to filtering, which means that any data that is not selected disappears without any possibility of being reproduced.
GR1 (Government): This data will not be available to the FRA.