Appendix 6 Centrum för rättvisa v. Sweden before the Grand Chamber (Application no. 35252/08)

Signals Intelligence Act (2008:717)

The scope of signals intelligence Section 1

Within foreign intelligence conducted under the Foreign Intelligence Act (2000:130), the authority designated by the Government (the signals intelligence authority) may use signals intelligence to collect signals in electronic form. Signals intelligence within foreign intelligence may only be conducted in cases where the Government or an authority stated in Section 4 has issued tasking directives for the signals intelligence.

Signals intelligence within foreign intelligence may only be conducted in order to survey: 1. external military threats to the country; 2. the conditions for Sweden’s participation in international peace support and humanitarian operations, or threats to the security of Swedish interests in undertaking such operations; 3. strategic circumstances concerning international terrorism and other serious cross- border crime that may threaten essential national interests; 4. the development and dissemination of weapons of mass destruction, military equipment and products referred to in the Act on Control over Dual-use Products and over Technical Assistance (2000:1064); 5. serious external threats to the infrastructure of society; 6. conflicts abroad with consequences for international security; 7. a foreign power’s intelligence operations targeting Swedish interests; or 8. the actions or intentions of a foreign power that are of substantial significance for Swedish foreign, security or defence policy.

If it is necessary for foreign intelligence, signals intelligence may also be used to collect signals in electronic form in order to: 1. monitor changes in the international signals environment, technological developments and signals protection; and 2. continuously develop the technology and methods required to conduct operations under this Act. Act 2009:967.

Section 2

Signals intelligence collection in cables may only concern signals crossing the Swedish border in cables owned by an operator.

Section 2a

Signals intelligence collection may not target signals between a sender and a receiver that are both situated in Sweden. If such signals cannot be separated on collection, recordings or notes must be destroyed as soon as it becomes clear that such signals have been collected.

The first paragraph does not apply to the collection of signals between senders and receivers aboard foreign state vessels or aircraft, or in military vehicles. Act 2009:967.

Selectors Section 3

Signals intelligence collection via cable must be automated. Such collection may only concern signals identified using selectors. Other automated collection must also use selectors to identify signals.

Selectors must be formulated and used with respect for the privacy of individuals and in such a way that signals intelligence causes as little interference with privacy as possible. In addition, selectors that pertain directly to a specific natural person may only be used if this is of particular significance to operations. Act 2009:967.

Tasking directives Section 4

The Foreign Intelligence Act (2000:130) contains provisions on the tasking directives issued by the Government and government authorities for such operations. Tasking directives for signals intelligence may only be issued by the Government, the Government Offices, the Swedish Armed Forces, the Swedish Security Service, and the National Operative Department of the Swedish Police Authority.

The Government issues tasking directives for operations conducted under Section 1, third paragraph.

A tasking directive for signals intelligence may not solely target a specific natural person. Act 2014:691.

Permits Section 4a

The signals intelligence authority must apply for a permit from the Foreign Intelligence Court for signals intelligence under Section 1. An application must contain details of: 1. the signals intelligence mission to which the application refers, including a detailed account of the need that occasions the application and the tasking directive to which the mission relates; 2. the cable signal carrier or carriers to which the signals intelligence authority requires access to conduct the mission; 3. the selectors or categories of selectors intended for use in collection; 4. the time period during which the permit is to apply; and

5. any other circumstances that the authority wants to cite in support of its application. Act 2009:967.

Section 5

A permit for signals intelligence in a particular mission may only be granted if: 1. the mission is compatible with the Foreign Intelligence Act (2000:130) and this Act; 2. the purpose of the collection cannot be achieved in a less intrusive way; 3. the mission is expected to provide information whose value is clearly greater than the interference with privacy that would result from collection in accordance with the application; 4. the selectors or categories of selectors intended for use are compatible with Section 3; and 5. the application does not solely target a specific natural person. Act 2009:967.

Section 5a

A permit must state: 1. the mission for which collection may take place; 2. the cable signal carrier or carriers to which the signals intelligence authority will have access to conduct the mission; 3. the selectors or categories of selectors that may be used for collection; 4. the time period to which the permit applies; and 5. any other conditions that are necessary to limit the interference with the personal privacy of individuals.

A permit may be granted for a maximum of six months from the date of the decision, and may be extended for a maximum of six months at a time after renewed examination.

If, for a signals intelligence mission for which a permit has been granted to be conducted, a need arises for access to additional signal carriers or the use of other selectors requiring a permit, a supplementary permit must be applied for. The relevant parts of Sections 4 and 5 apply to the application and the examination. A permit of this kind must have the same period of validity as the permit for the signals intelligence mission for which access to the signals is required or the selectors are intended for use. Act 2009:967.

Section 5b

If it can be feared that obtaining a permit from the Foreign Intelligence Court would result in a delay or other inconvenience that is of substantial significance for any of the purposes stated in Section 1, a permit for signals intelligence may be issued by the official at the signals intelligence authority designated by the Government. A permit of this kind must be drawn up in accordance with Section 5a.

If a permit has been issued under the first paragraph, the Foreign Intelligence Court must be notified immediately in writing of the measure. The notification must state the grounds for the measure. The Foreign Intelligence Court must examine the matter promptly and, if it finds that there are no grounds for the measure, cancel or amend the decision. If a decision under the first paragraph has ceased to apply before the Court has examined the matter, the signals intelligence authority must notify the control authority of the measure.

If the Foreign Intelligence Court cancels or amends a decision under the first paragraph, the recordings or notes of data already collected must be destroyed immediately, to the extent that the recordings or notes can be attributed to the amendment. Act 2009:967.

Section 6

Provisions on the Foreign Intelligence Court are found in the Foreign Intelligence Court Act (2009:966). Act 2009:967.

Obligation to destroy data Section 7

Recordings or notes of data collected under this Act must be destroyed immediately if the content: 1. concerns a specific natural person and has been assessed as lacking significance for a mission referred to in Section 1; 2. refers to data that is subject to confidentiality under Chapter 3, Article 3 of the Freedom of the Press Act, or Chapter 2, Article 3 of the Fundamental Law on Freedom of Expression, or that is covered by the prohibition on inquiries in Chapter 3, Article 5 of the Freedom of the Press Act or Chapter 2, Article 5 of the Fundamental Law on Freedom of Expression; 3. includes data in messages between a person who is suspected of an offence and his or her defence counsel that are protected under Chapter 27, Section 22, first paragraph of the Swedish Code of Judicial Procedure; or 4. refers to data given during confession or private pastoral care, unless there are exceptional grounds to process the data for the purposes stated in Section 1, second paragraph. Act 2018:1918.

Reporting Section 8

Intelligence containing data collected under this Act must be reported to the relevant authorities in accordance with the provisions of the Foreign Intelligence Act (2000:130). If the data concerns a specific natural person, the report may only refer to circumstances that are of significance in the respects stated in Section 1 of that Act. Act 2009:967.

International cooperation Section 9

The Foreign Intelligence Act (2000:130) contains provisions on international cooperation in the area of foreign intelligence.

For activities stated in Section 1, third paragraph, the signals intelligence authority may, in accordance with specific instructions from the Government, establish and maintain cooperation on signals intelligence matters with other countries and international organisations. Act 2009:967.

Controls Section 10

The authority designated by the Government (the control authority) must control compliance with this Act. Controls must specifically concern scrutiny of selectors referred to in Section 3, destruction of data referred to in Section 7, and reporting under Section 8.

The authority may decide that a specific collection must be terminated or that recordings or notes of collected data must be destroyed if, during a control, it emerges that the collection is incompatible with a permit issued under this Act.

The authority is led by a board whose members are appointed by the Government for a fixed term of at least four years. The president and vice-president must be, or have been, permanent judges. The other members are appointed from among the persons proposed by the party groups in the Riksdag. Act 2009:967.

Section 10a

The control authority is obliged, upon request by an individual, to control whether his or her messages have been collected in connection with signals intelligence under this Act and, if so, whether the collection and processing of the data collected was in accordance with the law. The control authority must notify the individual that the control has been carried out. Act 2009:967.

Section 11

Within the signals intelligence authority there is a council tasked with conducting continuous supervision of the measures taken to ensure privacy protection in signals intelligence. The members of the council are appointed by the Government for a fixed term. The council reports its observations to the signals intelligence authority management and, if the council finds reason to do so, to the control authority. Act 2009:967.

Duty of notification Section 11a

If, in the course of signals intelligence under this Act, selectors have been used that pertain directly to a specific natural person, the person must be notified of this, unless otherwise follows from Section 11b. The notification must contain details of when the collection took place and the purpose of the collection.

Notification must be given as soon as possible without detriment to foreign intelligence, but no later than one month after the end of the collection mission that occasioned the collection. Act 2009:967.

Section 11b

Notification under Section 11a may be postponed if secrecy prevents notification being given. If, for reasons of secrecy, it has not been possible to give notification within a year after the end of the collection mission, notification need not be given.

Notification is not given if the collection exclusively concerns the circumstances of a foreign power or relations between foreign powers. Act 2009:967.

Other provisions Section 12

The Electronic Communications Act (2003:389) contains provisions on operators’ obligation to transmit signals to enable collection under this Act.

Only the control authority has disposition over signal carriers containing signals transmitted in accordance with the provisions referred to in the first paragraph. The authority must only give the signals intelligence authority access to signal carriers to the extent that follows from a permit under Section 5a or 5b. Act 2009:967.

Section 12a

The Act on processing of personal data in the foreign intelligence and development operations of the National Defence Radio Establishment (2007:259) contains additional provisions on the processing of personal data collected. Act 2009:967.

Section 13

Decisions under this Act cannot be appealed.