A/HRC/23/40 subject to judicial authorization and review, and occurred only in situations where there might be a concrete danger to a predominantly important legal interest. 40 E. Extra-territorial application of surveillance laws 64. In response to the increased data flows across borders and the fact the majority of communications are stored with foreign third party service providers, a number of States have begun to adopt laws that purport to authorize them to conduct extra-territorial surveillance or to intercept communications in foreign jurisdictions. This raises serious concern with regard to the extra-territorial commission of human rights violations and the inability of individuals to know that they might be subject to foreign surveillance, challenge decisions with respect to foreign surveillance, or seek remedies. In South Africa, for example, the General Intelligence Laws Amendment Bill allows for surveillance of foreign communications outside of South Africa or passing through South Africa. 41 In October 2012, the Dutch Ministry of Justice and Security proposed legislative amendments to the Dutch Parliament that would allow the police to break into computers and mobile phones both within the Netherlands and abroad in order to install spyware and search and destroy data.42 In December 2012, Pakistan’s National Assembly passed the Fair Trial Act of 2012, paragraph 31 of which provides for the execution of surveillance warrants in foreign jurisdictions. Later that month, the United States renewed the Foreign Intelligence Surveillance Amendment Act of 2008 extending the Government’s power to conduct surveillance of non-American persons locate outside the United States (§1881a), including any foreign individual whose communications are hosted by cloud services located in the United States (such as Google and other large Internet companies). 43 Also in 2012, the European Telecommunications Standards Institute created draft standards for interception of foreign cloud-based services by European Governments.44 These developments suggest an alarming trend towards the extension of surveillance powers beyond territorial borders, increasing the risk of cooperative agreements between State law enforcement and security agencies to enable the evasion of domestic legal restrictions. F. Mandatory data retention 65. In order to increase the storage of communications data that they are able to access, some States are adopting mandatory data retention laws requiring Internet and telecom service providers (collectively, “communications service providers”) continuously to collect and preserve communications content and information about users’ online activities. Such laws enable the compilation of historical records about individuals’ e-mails and messages, locations, interactions with friends and family, etc. 40 41 42 43 44 Available in German. BVerfG, 1 BvR 370/07 vom 27.2.2008, Absatz-Nr. (1 67), http://www.bverfg.de/entscheidungen/rs20080227_1bvr037007.html. Section 1. c. General Intelligence Laws Amendment Bill. Available at: http://www.parliament.gov.za/live/commonrepository/Processed/20111201/385713_1.pdf. See http://www.edri.org/edrigram/number10.20/dutch-proposal-state-spyware. See European Parliament Directorate-General for Internal Policies Policy Department C: Citizens Rights and Constitutional Affairs, Fighting crime and protecting privacy in the cloud: study, 2012. Draft ESTI DTR 101 567 Lawful Interception (LI) Vo.1.0 (2012 - 05); Cloud/Virtual Services (CLI). Available at: www.3gpp.org. 17