A Paradigm Shift in Swedish Electronic Surveillance Law

The book "Digital Democracy and the Impact of Technology on Governance and Politics: New Globalized Practices" has been published with my article "A Paradigm Shift in Swedish Electronic Surveillance Law", available in hardcopy as well as ondemand pdf download. Here is the abstract.

Electronic surveillance law is subject to a paradigm shift where traditional principles are reconsidered and the notion of privacy has to be reconstructed. This paradigm shift is the result of four major changes in our society with regard to: technology, perceptions of threats, interpretation of human rights and ownership over telecommunications. The above-mentioned changes have created a need to reform both the tools of electronic surveillance and domestic legislation. Surveillance that was previously kept secret with reference to National Security is now subject to public debate, including Communications Intelligence (COMINT), a sub-category of Signals Intelligence (SIGINT). This chapter covers systems of “mass surveillance,” such as data retention and COMINT, and whether these are consistent with the European Convention on Human Rights. The chapter comes to two conclusions in relation to COMINT. First, the perceived threats have changed, shifting the focus of COMINT from military threats towards non-state actors such as terrorists and criminal networks. Second, COMINT involves relatively narrow interception of the content of messages compared to its large-scale collection and storage of traffic data, which through further processing may reveal who is communicating with whom.

The present text is an updated version of my contribution  "FRA and the European Convention on Human Rights - A Paradigm Shift in Swedish Electronic Surveillance Law" published 2010 by the publisher Fagoforlaget, Bergen. The reason why I updated the original article is twofolded: 1) The publisher Fogforlaget did not print one table as it was submitted by my and 2) the original article was written 2008. During 2009 the legislation was amended (effective 1 December 2009) and thus there was a need to provide an updated assesment of the 2009 changes.

I submitted the present contribution in September 2011 and it has not been published until now (1 February 2013). Since then some provisions of the legislation has been amended. This is not a major problem because in the article I indicated that the changes were forthcoming. For example on pages 188 and 198 I write the following.

Thus, at the present time only the Government, the Government office, and the Defence Forces have the authority to request the FRA to conduct electronic surveillance. … The Government has commissioned a second inquiry to consider signals intelligence for law enforcement purposes. The inquiry has at the present date not yet presented a formal proposal, but it appears as only the Secret Service (SÄPO) and no other law enforcement agency will have the power to issue requests for signals intelligence operations

The Government has since I submitted the article presented a proposal which been adopted as a law adopted effective 1 January 2013. The law now grants SÄPO and the regular police the power to issue requests for signals intelligence operations. Based on the position of the Government and the main opposition party (the Socialdemocrats) I believe that the legislation is stable as it is and no substantial changes are to be expected in the foreseeable future.

For those of you interested in a comparison with the US, please read my article "The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA" published in the essay collection "Freedom of Expression - Essays in honour of Nicolas Bratza, President of the European Court of Human Rights".