The surveillance by the Swedish Radio Defense Establishment (Försvarets radioanstalt, FRA) is unprecedented. The question is whether this surveillance is compatible with the right to protection of private life in the European Convention on Human Right.
– Sweden should not be balancing on the border of what can be a violation of fundamental human rights. There is a public interest to establish if the FRA surveillance regime meets the requirement of the European Convention or not, says the Head of Centrum för rättvisa who together with Anna Rogalska Hedlund acts as Counsel before the European Court of Human Rights.
The Swedish surveillance regime is brought to the European Court of Human Rights
The FRA has been conducting signal intelligence surveillance in radio waves for a long time. To keep pace with technological developments, the signal intelligence regime was extended to cover surveillance in cables, i.e. to listen to communications on the Internet or mobile telephony – which was not allowed under the previous legislation. During the summer of 2008, this legislative amendment caused an intense public debate on state surveillance versus personal integrity.
Shortly after the Swedish Parliament voted the new Swedish Act, the European Court of Human Rights found a violation in a similar case against the United Kingdom and Centrum för rättvisa decided to challenge the Swedish signal intelligence regime before the Court in Strasbourg. The Swedish government also acknowledged the problem and, relatively quickly, amended the Signal Intelligence Act in order to strengthen the protection of integrity.
Third party intervention and the European Court asks critical questions to the Government
The new Signal Intelligence Act has also triggered reactions in other Nordic countries. The Norwegian Section of the International Commission of Jurists made a Third Party Intervention in Centrum för rättvisa’s case focusing on the effect the Swedish Act will have on Norwegian nationals.
The European Court of Human Rights has communicated the case twice to the Swedish Government and asked a number of questions. The Court has divided the questions into three different time-periods: before the Signal Intelligence Act, during the first Signal Intelligence Act and after the amended Signal Intelligence Act, i.e. the Act in its current form. The European Court is for instance asking whether the Swedish signal intelligence regime complies with the minimum legislative safeguards and supervision standards established in the Court’s case-law. The European Court has also stated that widespread suspicion and concern among the public that surveillance is being abused cannot be said to be unjustified when there are no domestic remedies to challenge the surveillance.
Many questionmarks regarding the current legaslative regime
Most of the FRA’s activities is surrounded by a high level of secrecy. The scope of the surveillance taking place today is not known to the public. However, that large amounts of data is being collected is obvious. A scrutiny of the legislative framework leaves a number of questions unanswered. For example, signal intelligence can be conducted not only for foreign intelligence purposes but also for so called technical signal intelligence, i.e. to follow changes in the signal environment in the world, technical developments and the signal protection and to continuously develop techniques and methods needed to conduct activities under the Signal Intelligence Act. It appears that the so called technical signal intelligence is extensive. Also, a number of authorities have direct access to the data collections at the FRA. Exactly to whom and for what purposes such direct access is given is not known. For most of the data collected it is not regulated when data is being sorted out and destroyed from the collections held by the FRA.
The current supervision mechanisms are either hard to assess because their activities are covered by secrecy or only cover a part of the surveillance activities of the FRA.
Forthcoming judgment from the European Court
The Government has responded to the Court’s questions and Centrum för rättvisa has been given the opportunity to in writing respond to the Government’s observations. If the parties do not settle and the Government does not make further observations, the European Court should be ready to judge if the Swedish intelligence regime meets the standards of the Convention.
Proceedings before the European Court of Human Rights: