TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): It is able to intercept all communications transmitted over the airwaves or along the fiber optic cables that traverse the Swedish border, acting as the digital arteries for virtually all online cross-border communications.
AP1 (Applicant): Through its interception operations, the FRA is able to obtain vast quantities of private, intimate, even legally privileged information.
AP1 (Applicant): It is able to obtain this from an unspecified number of people and organizations.
AP1 (Applicant): These persons need not be reasonably suspected of a crime or any wrongdoing, nor actually be of any foreign intelligence interest at all.
AP1 (Applicant): If their communications meet the selectors or search terms employed by the FRA, then their private communications will be caught by its net.
AP1 (Applicant): The mere existence of the Swedish signals intelligence regime constitutes an interference with the protection afforded to privacy and correspondence under Article 8 of the Convention.
AP1 (Applicant): It has a potential chilling effect on the free exchange of information and ideas that underpin any healthy democracy.
AP1 (Applicant): This interference further pervades every stage of the surveillance process, from the initial collection through to the storage, use, analysis, and transfer of intercepted material.
AP1 (Applicant): This case, together with the case of Big Brother Watch and others against the United Kingdom, heard by the Grand Chamber earlier today, represents an important moment for the protection of privacy and correspondence in the digital age.
AP1 (Applicant): It is the first opportunity for Europe's premier human rights court to stipulate whether and under what conditions bulk interception of this scale and intensity may be carried out under the Convention.
AP1 (Applicant): This case in particular raises important questions about the consideration that member states should give to human rights when transferring intercepted data to foreign governments and to international organizations.
AP1 (Applicant): I will first address the court on the issue of when secret surveillance may constitute a justified interference with Article 8 of the Convention.
AP1 (Applicant): I will then turn to highlight five key deficiencies with the Swedish signals intelligence regime.
AP1 (Applicant): Finally, I will conclude with some brief remarks on the applicant's victim status and admissibility.
AP1 (Applicant): Mr. Bergman is then ready to respond
AP1 (Applicant): to any further questions from the court in the second round of submissions.
AP1 (Applicant): I turn then firstly to address the question of when secret surveillance may be a justified interference with Article 8 of the Convention.
AP1 (Applicant): There are compelling reasons why this court may wish to hold that bulk interception regimes of the scale and intensity as that in the present case can never constitute a justified interference with Article 8.
AP1 (Applicant): Whenever this court has examined a secret surveillance system and gone on to hold that they are in fact compatible with the Convention, it has often justified doing so by the reference to its targeted, specific, and contained nature, the very opposing qualities of that of a large-scale modern bulk interception regime.
AP1 (Applicant): We deal with this point in our further written observations at paragraphs 27 through to 35.
AP1 (Applicant): If, however, the court decides that the bulk interception surveillance such as that in the present case falls within a member state's margin of appreciation, it must surely acknowledge that it falls on its outermost edge.
AP1 (Applicant): And this fact must color the way in which the court assesses the quality of the safeguards that must be in place at the national level.
AP1 (Applicant): European supervision of the margin of appreciation must demand safeguards that are truly robust and commensurate with the privacy risks that a system presents.
AP1 (Applicant): This court has developed a series of minimum safeguards that must apply to secret surveillance.
AP1 (Applicant): The Grand Chamber affirmed these with respect to targeted surveillance in its recent case of Zakharov.
AP1 (Applicant): They include prior authorization, limits on scope and duration, procedures for processing and transfer, independent supervision, and remedies.
AP1 (Applicant): These safeguards are designed to ensure that surveillance is conducted in accordance with the law and is confined to what is necessary in a democratic society for the pursuit of its legitimate aims.
AP1 (Applicant): We have made several submissions as to how these safeguards should be updated and adapted when applied to a bulk interception surveillance regime within the context of foreign intelligence.
AP1 (Applicant): These submissions can be found at paragraphs 36 to 80 in our further written observations.
AP1 (Applicant): In any case, however, the Swedish signals intelligence regime falls short of even the minimum safeguards in their existing formulation.
AP1 (Applicant): We wish to highlight five key deficiencies in the Swedish framework that we feel are of particular importance.
AP1 (Applicant): The first key deficiency is that the Swedish framework lacks appropriate safeguards to limit the duration of surveillance.
AP1 (Applicant): It has been a longstanding feature in this court's case law that the duration of surveillance operations must be subject to certain limits in order to protect against their excessive use.
AP1 (Applicant): In the case of Zakharov, the grand chamber cited three important safeguards to be set out in domestic law.
AP1 (Applicant): First, there should be rules on when a warrant expires.
AP1 (Applicant): Second, the law should specify the conditions under which a warrant may be renewed.
AP1 (Applicant): And third, the law should set out the circumstances when a warrant must be canceled.
AP1 (Applicant): The grand chamber found that the Russian laws governing secret surveillance for national security purposes contained the first two safeguards, but failed to contain the third relating to cancellation.
AP1 (Applicant): It found, therefore, that the Russian system failed to provide sufficient guarantees against arbitrary interference.
AP1 (Applicant): The Swedish regime contains precisely the same shortcoming.
AP1 (Applicant): Section 5A of the Swedish signals intelligence act fulfills safeguards one and two.
AP1 (Applicant): It states that a warrant may be valid for a maximum period of six months and may be subject to renewal at six monthly intervals.
AP1 (Applicant): But neither the act nor any other law contains a discontinuation provision specifying when a warrant must be canceled.
AP1 (Applicant): Unlike in a criminal surveillance operation, which is governed by the Swedish code of judicial procedure, there is no legal obligation to cancel a warrant when the required conditions have ceased to exist or the measures themselves are no longer necessary.
AP1 (Applicant): Without such a provision, excessive and inappropriate surveillance is capable of continuing for several months until the warrant eventually expires on its own.
AP1 (Applicant): Given the sheer volume of information that could be obtained through bulk interception in that time, this absence in the Swedish framework is of critical importance.
AP1 (Applicant): We would invite the Grand Chamber, therefore, to repeat its conclusion in Zakharov and find that the Swedish system fails to provide sufficient guarantees against arbitrary interference.
AP1 (Applicant): The second key deficiency is the lack of protection for data relating exclusively to legal persons, such as the applicant.
AP1 (Applicant): This relates to the requirement for proper procedural safeguards relating to the storing, accessing, examining, using, communicating, and destroying of intercepted data.
AP1 (Applicant): The Signals Intelligence Act primarily sets out when and how an interception can be made.
AP1 (Applicant): It contains few conditions for the actual use and analysis of the intercepted material once it has been collected.
AP1 (Applicant): These conditions are set down in a different statute, the FRA Data Processing Act.
AP1 (Applicant): The problem, however, is that the FRA Data Processing Act only applies to intercepted material containing personal data.
AP1 (Applicant): Chapter 1, section 4 of this act provides a definition of personal data as follows.
AP1 (Applicant): Information that is directly or indirectly related to a natural living person.
AP1 (Applicant): This means that the FRA Data Processing Act does not apply to intercepted material relating to legal persons.
AP1 (Applicant): What this means, then, is that whole swathes of correspondence pertaining to law firms, private businesses, churches, public watchdogs, or press associations can fall entirely outside of the key piece of legislation affording protection for the processing of intercepted material.
AP1 (Applicant): So long as intercepted material does not contain, or presumably is altered so as not to contain personal data, it may be kept forever.
AP1 (Applicant): It may be used for purposes incompatible with the original purpose of collection.
AP1 (Applicant): And it may be passed on to foreign governments and international organizations, even if it is irrelevant to the original tasking directive.
AP1 (Applicant): This is far from an unfortunate omission.
AP1 (Applicant): This was an active decision taken by the government to exclude legal persons from the protection afforded by this act.
AP1 (Applicant): The initial proposal for the FRA Data Processing Act, prepared by an expert committee, specifically advised that legal persons should fall within this law's scope, given that the FRA processes large volumes of information related to legal persons.
AP1 (Applicant): The government rejected this advice when preparing the law, stating only that it needed to protect the private lives of natural persons.
AP1 (Applicant): This rejection failed to recognize the importance of affording protection not just to privacy, but also to the protection of correspondence, which is afforded to both natural and legal persons under Article 8 of the Convention.
AP1 (Applicant): This commentary from the government can be found at page 47 of enclosure 40 to our further written observations.
AP1 (Applicant): We do not necessarily suggest that the information relating to legal persons should be afforded identical protection to that relating to private individuals.
AP1 (Applicant): But to have, for instance, no storage limitation and no purpose limitation for such material leaves the right to the protection of correspondence for organizations unduly vulnerable to unfettered discretion.
AP1 (Applicant): In its judgment, the chamber acknowledged our submissions in that certain remedies were not available to legal persons under the Swedish framework, such as a data subject access request or notification.
AP1 (Applicant): It did not, however, address this more wide-ranging problem that most of the protection at the analysis and use phase does not apply to material that does not contain personal data.
AP1 (Applicant): With respect to the chamber, we would ask that this court correct this omission and find that this feature of the Swedish legal framework is in breach of Article 8.
AP1 (Applicant): The third key deficiency is that the Swedish system does not give any independent body or bodies sufficient supervisory control over the FRA's bulk interception activities.
AP1 (Applicant): In the case of Zakharov, the grand chamber made clear that supervisory bodies must be vested with sufficient powers to exercise effective and continuous control.
AP1 (Applicant): They must be able to take measures to stop or remedy detected breaches of the law, and that it is for the government to be able to demonstrate that such powers are effective in practice.
AP1 (Applicant): The primary body charged with supervising the FRA is the Foreign Intelligence Inspectorate.
AP1 (Applicant): This grand chamber has asked us to clarify exactly what the inspectorate can and cannot make legally binding decisions about.
AP1 (Applicant): Let us first look at the legally binding decisions that the inspectorate can make.
AP1 (Applicant): The inspectorate can make binding decisions where it finds that the FRA has violated the terms of a warrant.
AP1 (Applicant): That is the only circumstance.
AP1 (Applicant): It may order such activities to stop and may order the information obtained in contravention of the warrant to be destroyed.
AP1 (Applicant): This is in accordance with section 10 of the Signals Intelligence Act, which can be found at enclosures 49 and 50 of our further written observations.
AP1 (Applicant): Let us now turn, however, to what the inspectorate cannot do.
AP1 (Applicant): It cannot quash the warrant itself.
AP1 (Applicant): And importantly, it cannot make legally binding decisions relating to any other breach of applicable laws.
AP1 (Applicant): Two circumstances are of particular note here.
AP1 (Applicant): Firstly, the inspectorate cannot make legally binding decisions relating to the breaches of the FRA Data Processing Act.
AP1 (Applicant): Instead, it must report the matter to the Data Protection Authority.
AP1 (Applicant): This is in accordance with section 15 of the Ordinance with Instructions for the Swedish Foreign Intelligence Inspectorate, found at enclosures 49 and 50 of our further written observations.
AP1 (Applicant): The Data Protection Authority itself cannot make any legally binding decisions with respect to the FRA.
AP1 (Applicant): It cannot impose any fine or penalty on it.
AP1 (Applicant): And it is under no obligation to take any action upon receiving a report from the inspectorate.
AP1 (Applicant): If it does choose to act, all that the Data Protection Authority can do is communicate its views to the FRA, or possibly obtain a court order from the Swedish Administrative Court.
AP1 (Applicant): The Administrative Court does not have a granted right of access to closed material, and does not have the power to order the FRA to stop the unlawful processing.
AP1 (Applicant): Such a court order has never been pursued, as was confirmed by the court itself in a statement contained at enclosure 21 of our further written observations.
AP1 (Applicant): The second point is that the inspectorate cannot make legally binding decisions on interception activities that breach the European Convention.
AP1 (Applicant): It has no specific mandate to conduct a review on such grounds.
AP1 (Applicant): And even if it suspects that such acts have occurred, it must merely report these to the Chancellor of Justice in certain limited cases.
AP1 (Applicant): The Chancellor of Justice has no specific responsibility to supervise the FRA, and is under no obligation to act upon receiving such a report from the inspectorate.
AP1 (Applicant): It has no authority to order the FRA to cease any interception activities, nor to order the destruction of data.
AP1 (Applicant): It is perhaps telling that, to our knowledge, the Chancellor of Justice has no government instructions for how to handle a report from the inspectorate, despite having similar instructions on reporting from the government authority that oversees secret surveillance in criminal investigations.
AP1 (Applicant): The overall system, therefore, is one of limited and insufficient supervisory oversight by the inspectorate, coupled with some general reporting obligations to other authorities, which themselves lack the authority to issue legally binding decisions on the FRA.
AP1 (Applicant): They do not have sufficient competence in theory, and the government has failed to show that they are effective in practice.
AP1 (Applicant): We say, therefore, that the Swedish framework clearly falls short of the minimum safeguards articulated by this grand chamber in Zakharov, and constitutes a breach of the minimum safeguards required.
AP1 (Applicant): We would also add a further point relating to supervision.
AP1 (Applicant): The grand chamber has asked both parties to clarify their positions on the FRA's record-keeping practices.
AP1 (Applicant): Our position is that the keeping of detailed records is essential for ensuring that supervisory bodies have sufficient access to information in order to monitor compliance.
AP1 (Applicant): The importance of having an obligation to do so has been highlighted by the court in Zakharov at paragraph 272, and in the Kennedy case at paragraph 165.
AP1 (Applicant): There is no legal obligation for the FRA to keep details of its interception activities.
AP1 (Applicant): This means that record-keeping practices essentially lie at the mercy of internal procedures and discretion, and far from the formal legal footing on which such an important safeguard should be placed.
AP1 (Applicant): Furthermore, the government has failed to sufficiently demonstrate that there are comprehensive record-keeping procedures in practice.
AP1 (Applicant): It has pointed to the isolated issue of logs that are kept on when data is destroyed.
AP1 (Applicant): It has also confirmed now that the data protection authorities' repeated criticism of the FRA's logs and follow-up of those logs has now been addressed, at least in respect to how they ensure the adequate security of personal data.
AP1 (Applicant): But these are two isolated issues.
AP1 (Applicant): We say that the FRA must ensure that there is sufficiently detailed information on all key aspects of a surveillance operation, ranging from collection, analysis, use, and transfer, and that the government has not adequately demonstrated that such record-keeping does, in fact, take place.
AP1 (Applicant): I now move to the fourth key deficiency, which is the lack of appropriate notification and remedies for persons affected by unlawful secret surveillance.
AP1 (Applicant): Let us consider the position of a person that fears that they may have been subject to unlawful secret surveillance by the FRA.
AP1 (Applicant): In theory, the FRA must notify them.
AP1 (Applicant): However, this requirement only applies to private persons and not to legal persons such as the applicant.
AP1 (Applicant): It is only required when a person's personal data is used as a selector in the initial phase of collection and not when a person's personal data is used to filter or process results in the subsequent analysis phase.
AP1 (Applicant): And in any event, the notification requirement has always been disapplied on the grounds of secrecy.
AP1 (Applicant): We would echo the words of the chamber, therefore, in stating that this notification requirement lacks practical significance.
AP1 (Applicant): If a person is never notified, then what may it do?
AP1 (Applicant): Unlike in the United Kingdom, there is no designated court or tribunal where this person may lodge a claim.
AP1 (Applicant): Instead, it can only ask the inspectorate to investigate whether they have been subject to secret surveillance, and if so, whether this was carried out lawfully.
AP1 (Applicant): The inspectorate, however, is only required to inform that person that an investigation has been carried out and is not obliged to inform them of its findings or give any reasons for its decision.
AP1 (Applicant): There is no opportunity to appeal this decision to any other body.
AP1 (Applicant): As we have mentioned, the inspectorate can only stop activities that contravene a warrant, meaning that any other unlawful activities it discovers in the course of its investigation potentially proceed without any proper recourse.
AP1 (Applicant): And in any event, the inspectorate has no power to grant that person compensation.
AP1 (Applicant): Now, in a bid to try and rescue this point, the government has invoked a whole host of general remedies under Swedish law that it says are available to a potential victim of unlawful secret surveillance.
AP1 (Applicant): We say that none of these constitute an effective remedy in and of themselves, nor in aggregate.
AP1 (Applicant): First, the government says that a person may bring a civil suit against the government for damages.
AP1 (Applicant): But the person must discharge the requisite burden of proof and show that unlawful activity has, in fact, taken place.
AP1 (Applicant): This is virtually impossible without proper notification or access to information, both of which are prevented on the grounds of secrecy.
AP1 (Applicant): This is exactly what the grand chamber concluded on a similar point in Zakharov.
AP1 (Applicant): In any event, a civil court would not have the authority to stop the offending surveillance activity or to order the destruction of the relevant data.
AP1 (Applicant): Second, the government suggests that a person can exercise their rights under data protection law.
AP1 (Applicant): They could issue a data subject access request for information on processing, request that the FRA erase unlawfully processed data, or lodge a complaint to the Data Protection Authority itself.
AP1 (Applicant): These remedies are only available for private individuals and not legal persons, and in any event, are theoretical and illusory in these circumstances.
AP1 (Applicant): Data subject access requests may be refused on the grounds of secrecy.
AP1 (Applicant): And accordingly, the FRA has never granted one.
AP1 (Applicant): Requesting erasure of particular data requires knowledge that the data exists in the first place, which secrecy also prevents.
AP1 (Applicant): And the Data Protection Authority has no authority itself to issue binding decisions against the FRA, and therefore suffers from the same shortcomings here as we have mentioned in respect to supervision.
AP1 (Applicant): Finally, the government refers to the Chancellor of Justice and the Parliamentary Ombudsman as providing adequate and effective remedies.
AP1 (Applicant): Neither of these bodies can issue legally binding decisions.
AP1 (Applicant): The Parliamentary Ombudsman can't even issue compensation.
AP1 (Applicant): As the court itself observed in the case of Sergestedt-Wieberg, these institutions merely exercise general supervision and do not have specific responsibility for inquiries into secret surveillance.
AP1 (Applicant): The Chancellor of Justice has confirmed that it has never taken any action on any complaints against the FRA.
AP1 (Applicant): The Parliamentary Ombudsman itself described itself as an extraordinary regulatory agency and stated that in 22 years, the only action it has ever taken in response to a complaint against the FRA was a single phone call.
AP1 (Applicant): These statements can be found at enclosures 12 and 13 of our further written observations.
AP1 (Applicant): We say, therefore, that these bodies are of no practical significance to the question of remedies.
AP1 (Applicant): We appreciate the challenges involved in affording appropriate remedies while maintaining secrecy.
AP1 (Applicant): This is not easy.
AP1 (Applicant): But especially where the net of those subject to secret surveillance is cast so widely and without any requirement for reasonable suspicion, the government must be required to do more.
AP1 (Applicant): This court has repeatedly stated in its case law that even in a secret surveillance context, the state must provide remedies that are as effective as can be.
AP1 (Applicant): We know that more effective remedies are possible.
AP1 (Applicant): The United Kingdom's Investigatory Powers Tribunal, or IPT, allows parties to issue complaints of unlawful interception without the need to prove that they have been subject to secret surveillance.
AP1 (Applicant): It has access to all relevant secret documents and may quash interception orders, order the destruction of unlawfully processed material, and issue compensation.
AP1 (Applicant): Its legal rulings are also published.
AP1 (Applicant): Whether even the IPT is sufficient is a question for another case.
AP1 (Applicant): But what it shows for our purposes is that Sweden's remedies are clearly not as effective as can be.
AP1 (Applicant): The fifth and final deficiency that we wish to highlight is perhaps the most glaring of all.