För din och andras säkerhet: Konstitutionella proportionalitetskrav och Säkerhetspolisens preventiva tvångsmedel
2013 (Swedish)Doctoral thesis, monograph (Other academic)Alternative title
For Security Reasons : Constitutional Proportionality and the Electronic Intelligence Gathering Mandate of the Swedish Security Service (English)
This doctoral thesis analyzes the balancing and proportionality analyses performed by Swedish legislators over time in the creation of legislation allowing for the interception of communica- tions data and metadata by the Swedish Security Service for intelligence purposes. By examining the concept of proportionality within the field of constitutional law, a framework for performing proportionality tests is identified. This framework is used as a contrast against the actual proportionality analyses performed by legislators in preparatory works, and to analyze three components of the legislators’ policy choices: the legislators’ view of national security, the legislators’ view of privacy; and the effect of technological development on the former two components. These components are analyzed through a study of preparatory works from a historical comparative perspective, allowing for the study of shifts in policy outcomes over time.
The study shows that legislators’ views on national security have shifted during the last 50 years. as could be expected the focus has shifted towards a more preventive approach. Following this development however the study further identifies a shift in the legislators’ views on privacy. Whereas the importance of privacy from a societal perspective seemed pivotal in the ’pre-preventive era’ of communications interception, the view in the last 15 years has gradually shifted towards a view of privacy as an almost exclusively individual interest, resulting in a weakened status of the right to privacy against competing national security interests. Finally, the importance of technological developments within this field can hardly be overestimated. The range of permitted forms of communications interceptions has closely followed what has been technologically possible, and economically feasible to intercept.
Intelligence gathering has increasingly become a legal sphere of its own, where most forms of metadata can be collected without the involvement of the judiciary, and where evidentiary requirements have been lowered to facilitate the use of interception in preventive intelligence gathering. Overall the thesis concludes that these factors have enabled a different outcome of the legislators’ proportionality analyses, where previous ideals have been supplanted by the preventive paradigm.
Place, publisher, year, edition, pages
Uppsala: Iustus förlag, 2013. , 567 p.
Skrifter från Juridiska institutionen vid Umeå universitet, ISSN 1404-9198 ; 29
law, constitutional law, proportionality, national security, intelligence, lawful interception, signals intelligence, surveillance, security, security service, Sweden, privacy, private life, ECHR, European convention, human rights, technology, technology neutrality, prevention, constitutional rights
juridik, rättsvetenskap, proportionalitet, konstitutionell rätt, rikets säkerhet, nationell säkerhet, säkerhet, underrättelseverksamhet, signalspaning, avlyssning, övervakning, internet, säkerhetspolisen, personlig integritet, privatliv, Europakonventionen, mänskliga rättigheter, teknikneutralitet, prevention, konstitutionella rättigheter
Law (excluding Law and Society)
Research subject Law
IdentifiersURN: urn:nbn:se:umu:diva-82942ISBN: 978-91-7678-866-0OAI: oai:DiVA.org:umu-82942DiVA: diva2:664052
2013-12-06, Samhällsvetarhuset, S205h, Umeå universitet, Umeå, 10:15 (Swedish)
Asp, Petter, Professor
Bergling, Per, ProfessorSödergren, Patrik, Universitetslektor