Norwegian group joins case against Sweden's wiretapping law

A lawyers’ organization from Norway has submitted a petition supporting a case pending in the European Court of Human Rights which challenges Sweden’s controversial wiretapping law.

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The case was originally filed in July 2008 by the Sweden-based Justice Center (Centrum för Rättvisa - CFR), an independent law organization.

The group contends that the measure, which gives Sweden’s National Defence Radio Establishment (Försvarets radioanstalt – FRA) expanded powers to monitor cross-border communications traffic, violates Article 8 and Article 13 of the European Convention on Human Rights.

Article 8 of the convention guarantees citizens' right to privacy, while Article 13 deals with citizens' ability to hold national authorities to account for possible human rights violations.

“We welcome the Norwegian initiative,” said Clarence Crafoord, head attorney with CFR, in a statement.

“It offers additional perspectives about the problems with the FRA-law and it’s good that it makes clear to the European Court of Human Rights that the law affects both Swedes and citizens in other countries.”

The petition of support, officially known as a Third Party Intervention, was filed by the Norwegian chapter of the International Commission of Jurists (ICJ), an organization dedicated to advancing human rights in international law.

In the document, the group details its concerns about how Sweden’s signals intelligence law, which came into force on January 1st, 2009, might affect the privacy rights of Norwegian citizens.

The group cites a November 2008 report by the Norwegian Postal and Telecoms Agency which found that most electronic communications traffic both into and out of Norway passes through Sweden.

In addition, a great deal of Norway’s domestic communications traffic is also carried through infrastructure located in Sweden.

According to ICJ-Norway’s view, communications to and from Norwegian citizens are the “explicit target for the secret monitoring by Swedish authorities”.

The group goes on to cite a number of deficiencies in the law, including vague definitions of what sort of communications will be targeted, a lack of clear regulations regarding how the information will be stored, and an “utter lack of independent, judicial control” which it believes could result in the violation of Norwegian citizens’ privacy rights.

Also of concern to ICJ-Norway is the absence of remedies for citizens who have had their communications intercepted.

While the Swedish government addressed some of the concerns regarding judicial oversight of FRA’s wiretapping activities in a September 2008 amendment, ICJ-Norway explains in its brief that the changes only apply to Swedish citizens or people residing in Sweden.

Even if the changes are approved and implemented, “Norwegian citizens…are still left lawless under the present legislation.

“They are faced with the constant risk that their private communications which happen to pass Sweden’s borders could be subject to interception and be subsequently stored, distributed, and misused by and at the absolute discretion of the Swedish authorities,” writes ICJ-Norway in its filing with the human rights court.

In addition to threatening privacy rights, Sweden’s wiretapping measure also poses a threat to freedom of speech by impeding journalists’ ability to communicate with their sources, according to the group.

“In today’s society it is commonplace for journalists to communicate with sources in other jurisdictions,” writes ICJ-Norway.

“If a potential source for the press knows that he or she, by communicating cross-border with a journalist, is running the risk of the authorities intercepting that communication, the source might very well abstain from communicating all together.”

As a result, the press would be “cut off” from sources that are critical to its watchdog function in a democratic society.

CFR's Crafoord told The Local it was difficult to say exactly what impact the ICJ-Norway petition would have on the case.

"It can only be a good thing," he said.

"What it does is demonstrate that the law creates privacy issues for citizens of countries besides Sweden."

Crafoord expects the court to rule on whether or not it will take up the case by July at the latest.

"But assuming they decide to hear the case, it's anyone's guess as to when the court might issue a final judgment on the law," he said, adding that it "took years" before the court issued a ruling in similar case which originated in the UK.