TrustHLT/LaCour huggingface dataset:
Faris Vehabović (Judge): Could you explain what is, pressure for the government, what is external communication for the purposes of collection of intelligence data?
Faris Vehabović (Judge): And could you explain to me, is it, for example, Facebook communication or Instagram communication between two person in Sweden considered as external communication for the purposes of the law?
Faris Vehabović (Judge): And if yes, does it mean that the position of the government is that external communication deserve less protection than internal communication?
Angelika Nußberger (JudgeP): Judge Pinto de Albuquerque.
Paulo Pinto de Albuquerque (Judge): Basically, I'm posing some of the questions that I raised this morning to both parties.
Paulo Pinto de Albuquerque (Judge): One of the questions, essential questions, are is the one relating to the criteria that the court has used in other similar cases.
Paulo Pinto de Albuquerque (Judge): And the position of the applicants is that the applicable criteria in this case is Zakharov.
Paulo Pinto de Albuquerque (Judge): Zakharov, and we should stick to Zakharov because it's a bulk interception case.
Paulo Pinto de Albuquerque (Judge): This is the position of the applicants both this morning and this afternoon.
Paulo Pinto de Albuquerque (Judge): This morning, the government replied saying, yes, Zakharov applies to bulk interception, bulk surveillance.
Paulo Pinto de Albuquerque (Judge): So my question is, what is the position of the respondent government?
Paulo Pinto de Albuquerque (Judge): Is Zakharov the authority in this field of law?
Paulo Pinto de Albuquerque (Judge): Does it apply to bulk surveillance or not?
Paulo Pinto de Albuquerque (Judge): And the criteria, the relevant criteria, you are aware, of course, of it.
Paulo Pinto de Albuquerque (Judge): It's paragraph 230 and 231 of Zakharov.
Paulo Pinto de Albuquerque (Judge): And with this in mind, I would make a specific question to the applicants.
Paulo Pinto de Albuquerque (Judge): Because the applicants say in their submissions that, and I'm quoting the applicants, in cases where there are no defined targets at the initial point of data collection, the authorizing body must nevertheless be required to meet a similar materiality or relevant threshold to use personal data as selectors.
Paulo Pinto de Albuquerque (Judge): So it's no longer reasonable suspicion.
Paulo Pinto de Albuquerque (Judge): It's the relevant threshold.
Paulo Pinto de Albuquerque (Judge): Could you elaborate on this?
Paulo Pinto de Albuquerque (Judge): What is this?
Paulo Pinto de Albuquerque (Judge): What is this, the relevance threshold?
Paulo Pinto de Albuquerque (Judge): Are you not departing from Zakharov, from your initial position of principle?
Paulo Pinto de Albuquerque (Judge): And this leads me to the second question, which is related to the separation, clear cut separation in Swedish law between criminal investigation and data collection for national security purposes.
Paulo Pinto de Albuquerque (Judge): This is clear.
Paulo Pinto de Albuquerque (Judge): It results from the law.
Paulo Pinto de Albuquerque (Judge): But the fact is that since 2013, police and army have direct access to the FRA's database.
Paulo Pinto de Albuquerque (Judge): And in the near future, they can even have access in relation to events that are under ongoing criminal investigation.
Paulo Pinto de Albuquerque (Judge): And the question is this.
Paulo Pinto de Albuquerque (Judge): Are we not going into a slippery slope where gradually this instrument, which is basically an instrument of intelligence gathering, becoming effectively a domestic instrument of criminal investigation?
Paulo Pinto de Albuquerque (Judge): Third question is related to the status of the Foreign Intelligence Inspectorate.
Paulo Pinto de Albuquerque (Judge): It is composed of two former judges and four former politicians appointed by government, appointed and dismissed freely by government.
Paulo Pinto de Albuquerque (Judge): Is this a part-time job?
Paulo Pinto de Albuquerque (Judge): Is this, are these people supported by sufficient staff?
Paulo Pinto de Albuquerque (Judge): How do they work in terms of the means, the material, and human means available to them?
Paulo Pinto de Albuquerque (Judge): So I would like you to elaborate on the status of this Foreign Intelligence Inspectorate.
Paulo Pinto de Albuquerque (Judge): And this having in mind the criticism addressed by the Venice Commission report, paragraph 120 and 121, to the Swedish model.
Paulo Pinto de Albuquerque (Judge): Final question.
Paulo Pinto de Albuquerque (Judge): The United Nations Human Rights Committee report 2016 on Sweden reproached the Swedish intelligence gathering system.
Paulo Pinto de Albuquerque (Judge): Has the government acted upon the recommendations of the United Nations Human Rights Committee?
Paulo Pinto de Albuquerque (Judge): What was the reaction, the follow-up, given to this report of the United Nations Human Rights Committee 2016?
Paulo Pinto de Albuquerque (Judge): Ultimately, the question is the same put today to during the morning.
Paulo Pinto de Albuquerque (Judge): Is there a legal obligation in Swedish law to check whether foreign data recipients and data senders from non-council of Europe states to offer minimum safeguards equivalent to those of the convention?
Angelika Nußberger (JudgeP): In view of the questions, I will give you 15 minutes.
Angelika Nußberger (JudgeP): I call on Ms. Evans and Mr. Bergman for the applicant.
AP2 (Applicant): Thank you, Madam President and members of the court.
AP2 (Applicant): I will start by addressing the question put by Judge Albuquerque to the applicant, and then I will comment on a few of the remarks made by the government in this case.
AP2 (Applicant): I will start with Judge Albuquerque's question regarding our position on the reasonable suspicion requirement laid out in Sakharov.
AP2 (Applicant): And firstly, I would like to confirm what Judge Albuquerque, how he interpreted our position.
AP2 (Applicant): And our position is that the grand chamber ruling in Sakharov is controlling in this case, but might be adapted to suit the particular challenges of both surveillance regime of this kind.
AP2 (Applicant): For instance, in our further written submissions, we argue, for instance, that prior judicial review should be a minimum safeguard acknowledged by the court.
AP2 (Applicant): But let me go back to the delicate issue of reasonable suspicion in this context.
AP2 (Applicant): And I would start by saying that there are a lot of different definitions and ways of describing what we are looking at here today, and we talk about targeted versus untargeted surveillance, we talk about strategic surveillance, we talk about signals intelligence, and these terms are not always helpful.
AP2 (Applicant): And I think that using the words targeted versus untargeted is not always helpful in this context.
AP2 (Applicant): As the court in its chamber judgment in Big Brother, the court said that bulk surveillance is by definition untargeted, and because of that, it would be incompatible to have a, it is by definition untargeted, and it is not possible then to have a requirement of reasonable suspicion.
AP2 (Applicant): And respectfully, we disagree with this position.
AP2 (Applicant): Whereas the government has acknowledged in their submissions to the grand chamber, in many cases, signals intelligence has to target specific individuals' communications, and this follows from paragraph 69 of the government's submission to the grand chamber.
AP2 (Applicant): Even though in many bulk surveillance missions, individuals are not targeted, sometimes they can be.
AP2 (Applicant): And it is in those circumstances that the applicant's position is that in order for the authorizing body to make a proper proportionality review of a bulk surveillance mission, it needs to take into consideration whether the individual targeted meets, there is a requirement of reasonable suspicion that is met.
AP2 (Applicant): And using reasonable suspicion in this context, which is not a law enforcement context, the reasonable suspicion requirement cannot be then in relation to any particular crime, but it can be in relation to reasonable suspicion that the person that is going to be targeted is engaged in activities that is of interest to national security, or has information relating to national security.
AP2 (Applicant): That is our general view on the reasonable suspicion requirement.
AP2 (Applicant): In cases where individuals are not targeted in a particular mission, but individualized search terms are used, then maybe a lower standard can be applied, for instance, like such a materiality requirement as we talk about in our written submissions.
AP2 (Applicant): But that is in cases where search terms relating to individuals are used without the individual being targeted.
AP2 (Applicant): And I would also like to comment in this context on what the government said about using a reasonable suspicion requirement, is that that would mix up law enforcement with national security.
AP2 (Applicant): But our position is that the reason a requirement of reasonable suspicion is used in the law enforcement context is not because an individual can invoke the protections of Article 8 in order to not be prosecuted for a crime.
AP2 (Applicant): The reason we have those procedural safeguards is because the right to privacy has an intrinsic value.
AP2 (Applicant): And that applies with equal strength in a bulk surveillance regime when the government wants to target individuals' communications.
AP2 (Applicant): Now a few points that the government has made, starting with the international cooperation point, where the applicant's view is that the Swedish legislation grants the government wide discretion to transfer data to third countries and to international organizations without any concern for the individual's rights under Article 8.
AP2 (Applicant): The government bases such a blanket exception on an interpretation of the European Council Data Convention, and we have disputed this interpretation.
AP2 (Applicant): The government also points to an internal document with the FRA, a single paper, as an additional safeguard against abuse.
AP2 (Applicant): And our position is that this crucial safeguard relating to when the FRA can transfer the bulk of data that they have intercepted to a third country or an international organization needs to be set out clearly in statute law.
AP2 (Applicant): It is not sufficient that the protections provided to the individual in these circumstances is done in an internal document that can be changed at any time.
AP2 (Applicant): A quick comment then on the government's position on when an interference occurs.
AP2 (Applicant): As we have heard, the government's position is that an interference into the applicant's Article 8 rights occurs at the stage where the data is selected for examination and reaches the point of human contact, not by the mere legislation itself.
AP2 (Applicant): And to the applicant, this position seems incompatible with the Court's established principles, first laid down in Klas, then reiterated in Kennedy, and then affirmed by the Grand Chamber in Sakharov, that the mere existence of a piece of legislation like this can constitute an interference with the applicant's rights.
AP2 (Applicant): And the Court has also confirmed that further interferences can occur at the time of storage, at the time of use, at the time of destruction, and transfer of data to other parties.
AP2 (Applicant): And this follows, for instance, from Weber at paragraph 79 and Liberty at paragraph 57.
AP2 (Applicant): The government, on the other hand, cites no support for its position.
AP2 (Applicant): The government also pointed out some misconceptions that the government claims the applicant has done.
AP2 (Applicant): And the government pointed out, the government claimed that the inspectorate, upon an application from an individual, whether unlawful activities have been conducted, has an obligation to inform the individual about its finding.
AP2 (Applicant): We would just like to draw the Court's attention to section 10A of the Signals Intelligence Act, which contain no such legal obligation on the inspectorate.
AP2 (Applicant): The inspectorate only has to notify the individual that an investigation has been carried out.
AP2 (Applicant): It's unclear what the inspectorate will do in case of a finding of unlawful activities, since it has never happened.
AP2 (Applicant): The government also claims that the Chancellor of Justice must act if it gets a report from the inspectorate that the state might have incurred liability for damages.
AP2 (Applicant): And it's correct that the Chancellor obviously needs to do something when he or she receives the report from the inspectorate.
AP2 (Applicant): But the point here is that the Chancellor of Justice is not bound by the determination of the inspectorate that an unlawful collection of processing has been conducted.
AP2 (Applicant): And the point relates to the fact that the inspectorate is not an effective oversight body, because it cannot itself make these legally binding decisions, which is necessary in order for them to be effective.
AP2 (Applicant): An oversight and remedial body needs to be able to render legally binding decisions with regard to stopping unlawful interception, to deleting information that has been collected unlawfully, and in appropriate cases, order redress and compensation.
AP2 (Applicant): And finally, a point that we – oh, sorry.
AP2 (Applicant): The final misconception was about whether the administrative court, which can be drawn into this situation of different reporting activities from the inspectorate, whether the administrative court in Stockholm may get full access to the documents at the FRA and the inspection.
AP2 (Applicant): And as far as the applicants have found, there is no such provision in Swedish law guaranteeing the court full access to those documents.
AP2 (Applicant): There are special provisions guaranteeing the inspectorate and the data protection authority full access, but no such provision in relation to the administrative court.
AP2 (Applicant): And then one final point that I also want to highlight is the fact that there is, in the Swedish system, basically no protection for the correspondence of legal persons.
AP2 (Applicant): Basically unfettered discretion on behalf of the government in collecting and using information relating to legal person and transferring that information to third countries and organizations.
AP2 (Applicant): One particular point, since the applicant is a law firm, a public interest law firm, defending individuals, holding the government accountable, is that the signals intelligence regime does not have any protection for privileged communications unless it is in a criminal situation.
AP2 (Applicant): I would like to draw the court's attention to section 7 of the signals intelligence act, where there is a duty on the FRA to destroy communications between a criminal suspect and his attorney, but not in any other privileged situation.
AP2 (Applicant): I would like to stop there.
Angelika Nußberger (JudgeP): I call Ms. Hammarskjöld for the government.
GR1 (Government): The court has posed a number of important questions.
GR1 (Government): I will try to address them in the order that they were posed to me.
GR1 (Government): And then I will, at the end, take a few moments to address a few of the arguments put forward by the applicant during today's hearing.
GR1 (Government): To turn firstly to the question posed by Judge Spano regarding the judicial permit process and its relationship to the chain leading all the way to logs.
GR1 (Government): Indeed, as you said, Judge Spano, the permit process is a judicial process at the beginning of the signals intelligence process.
GR1 (Government): The Foreign Intelligence Court decides on which level of detail their permit will be for each specific collection mission.
GR1 (Government): They also decide, of course, whether the FRA's application meets the requirements of the court in that instance.
GR1 (Government): The applications to the court include a detailed account of the need of the intelligence requirement, detailed information of the signal carriers and the selectors or categories of selectors relevant for the specific collection mission.
GR1 (Government): This is an example of how the Foreign Intelligence Court, in fact, determines the limits of the application of our legislation.
GR1 (Government): The logs at the analytical stage of the process are not subject to a decision by the court.
GR1 (Government): But I would like to recall what the government has put forward when it comes to the detailed supervision which the full process is subject to by the Foreign Intelligence Inspectorate and other bodies.
GR1 (Government): If I might then turn to the question by Judge Verhauwit regarding the distinction between external and internal terms.
GR1 (Government): The terminology itself, I think, is closer to the United Kingdom legal system than the Swedish one.
GR1 (Government): Under Swedish law, the scope of signals intelligence within foreign intelligence is focused on foreign circumstances, as we've outlined in our observations.
GR1 (Government): That means, in practice, that the aim is typically to collect, to process, and report intelligence on phenomena and circumstances in other countries.
GR1 (Government): So as to provide Swedish decision makers with better data for decisions and assessment on foreign security and defense policy, or to protect Swedish personnel participating in international operations.
GR1 (Government): That doesn't preclude, of course, that some of the foreign circumstances could have ramifications in Sweden.
GR1 (Government): I'll reiterate here that signals intelligence within foreign intelligence may only be conducted for the purposes stated in the Signals Intelligence Act, and that signals intelligence may not be conducted on domestic traffic within Sweden.
GR1 (Government): So to respond to your more specific question regarding a message on Facebook or Instagram, collection may not target signals between a sender and a recipient who are both situated in Sweden.
GR1 (Government): Sender-recipient normally would refer to natural persons who are communicating with each other.
GR1 (Government): And when a natural person communicates also with an automated service, the same reasoning would apply under Swedish law with respect to the significance of the geographic location of sender and recipient.
GR1 (Government): Also, because one is sometimes asked that question, when two persons in Sweden communicate, it doesn't matter which citizenship they have.
GR1 (Government): Their communication is not to be collected if it is domestic.
GR1 (Government): So the response would be that communication, be it via Facebook or Instagram, but in a domestic context, would not be collected.
GR1 (Government): I'd like now to turn, if I may, to the questions posed by Judge Pinto de Albuquerque, starting with the point on the position of my government when it comes to the Zakharov criteria, as specified in paragraph 231 of the judgment.
GR1 (Government): It is our position that those criteria do apply to signals intelligence regimes, but with a minor adaptation, which is motivated by the fact that the criteria have essentially been developed in case law concerning secret measures of surveillance in criminal investigations.
GR1 (Government): And here I would refer to paragraph 68 to 72 of the government's observations of May this year.
GR1 (Government): It is, of course, also our position that it does not follow from the Zakharov judgment that there would be any requirement of reasonable suspicion.
GR1 (Government): Judge Pinto de Albuquerque, you also asked the question, is there a risk when it comes to the delimitation between signals intelligence within foreign intelligence and criminal investigation that there could be a slippery slope in the Swedish system?
GR1 (Government): And I would respectfully say no.
GR1 (Government): The legislation is absolutely clear on the delimitation between the two.
GR1 (Government): And as I outlined earlier, there are consequences linked to that delimitation.
GR1 (Government): The Swedish Security Service and the NOA may issue detailed tasking directives for signals intelligence, but they may not do so for the purpose of investigating criminal activities.
GR1 (Government): So according to my government, the legislation draws a very clear line between foreign intelligence and law enforcement.
GR1 (Government): And while the Swedish Security Service may, in some instances, be granted direct access to some data, this possibility is very limited.
GR1 (Government): And here I would refer you to paragraph 117, appendix 1, of our observations.
GR1 (Government): I was then asked the question about the role of the inspectorate and the position of the judges within the personnel and staffing regulations, which are there.
GR1 (Government): It is correct to say that the foreign intelligence inspectorate consists of a board, an office, which is described in the annual report, which we have submitted to the court.
GR1 (Government): The foreign intelligence inspectorate is led by a board who, as you referred to, are appointed by the government on terms of at least four years.
GR1 (Government): The vice president shall be or have been permanent judges.
GR1 (Government): Other members are selected from candidates proposed by party groups in the parliament.
GR1 (Government): It is correct to say that they work part time, but it would be equally correct to say that they work the time that is necessary to fulfill the supervisory duties which the inspectorate is assigned.
GR1 (Government): There is a supporting office to back up that, the work of the inspectorate.
GR1 (Government): And I would refer the court here to the annual report, which describes more about the working methods of the court in this respect.
GR1 (Government): With regard to the question related to the report of the Human Rights Committee of 2016, while that report did not lead to any specific decisions with regard to the system for signals intelligence, I hope that my government has demonstrated to the court that the whole Swedish signals intelligence regime is constantly subject to scrutiny and review by independent bodies who report on their findings.
GR1 (Government): So there is a constant process of looking at how the system works and how the safeguards that are within it truly function.
GR1 (Government): If I might then turn to the question with regard to international cooperation sharing data with countries outside the community of Council of Europe countries.
GR1 (Government): Firstly, to state again that international cooperation is regulated in law, and it is conducted in accordance with specific instructions from the government.
GR1 (Government): If I were to turn first to data going out from Sweden under that form of international cooperation, FRA guidelines require that international partners respect Swedish regulations.
GR1 (Government): We also have both training and information to partners regarding what that actually entails in terms of the content of Swedish legislation.
GR1 (Government): For the sake of completeness, I'll also make a comment on data coming in, although that issue is essentially outside the scope of the examination by the ground chamber.
GR1 (Government): But just to complement what has been said previously, that the internal regulations of the FRA state that those regulations also apply to material received from foreign partners.
GR1 (Government): Incoming is subject to the same regulation as data collected by the FRA itself.
GR1 (Government): And finally, on this point, does it actually work to reiterate to the court that the full functioning of this system is subject to oversight?
GR1 (Government): And I refer here to appendix 1, paras 118 to 121, and other parts of our previous observations.
GR1 (Government): With the indulgence of the court, I might now just briefly turn to a couple of comments related to statements made in the observations by the applicant today.