A/HRC/13/37 nature of the surveillance programmes. Individuals may not be able to prove or demonstrate that they are actually under surveillance. As a result, individuals may not be able to appeal to courts for remedy. In relevant cases, courts have ruled that individuals lack standing because they cannot demonstrate that they were under surveillance and any injuries have been considered speculative.56 In other cases, where interference can be proven, States have sometimes applied the “State secrets” privilege to avoid scrutiny of illegal surveillance projects.57 The Special Rapporteur commends the approach of the European Court of Human Rights (ECHR) where individuals do not need to prove that such measures necessarily had applied to them.58 3. Extending legal boundaries 39. Mutual legal assistance treaties are established to permit countries to cooperate in investigations and to share information in specific cases.59 Agreements have also been established to permit the sharing of information on individuals engaged in activities, e.g., all passengers travelling to another country or all individuals conducting interbank financial transactions. More opaque are the agreements between intelligence agencies to share databases and intelligence data. These databases are often subject to wide-ranging exemptions from the domestic legal system. Even if domestic legislation applies, the data may refer to foreign nationals who may not be permitted to exercise any rights in domestic courts. Individuals may not be aware of the fact that they are subject to surveillance — e.g., that they are on a list of suspected terrorists — because intelligence-driven lists are not publicly available and therefore they may not appeal for review. When that list is shared internationally individuals may not be able to identify why they were first placed on it, or otherwise be able to remove themselves from the multiplicity of lists that have emerged since then. 40. States have increased not only their cooperation with each other in the fight against terrorism, but also with private third parties that have personal information of individuals in order to identify and monitor terrorist suspects. Some Governments have subsequently endangered the protection of the right to privacy by not extending domestic privacy safeguards to their cooperation with third countries and private actors. 41. Third parties, such as banks, telephone companies or even cybercafes, now hold extensive personal information about individuals. Access to this information therefore provides significant details about the private lives of individuals. At the same time, government agencies may gain access to this information with fewer restrictions than if the information was held by individuals themselves, in the home, or even by other government agencies. In the United States, for instance the Supreme Court has ruled that, as data provided to third parties such as banks or telephone companies is shared “freely” with these parties, individuals may not reasonably expect privacy.60 Where there is a lack of constitutional protections that require a legal basis for the interference in the private lives of individuals, the burden then falls on the private organization to decide how to respond to a request from a government agency. Generally, the private sector prefers that Governments 56 57 58 59 60 GE.09-17804 This was most recently concluded in Amnesty International et al. v. John McConnell et al., United States District Court for the Southern District of New York, 20 August 2009. See United States District Court for the Northern District of California, Al-Haramain Islamic Foundation et al. v. Bush et al., 1 May 2009. See ECHR, Klass v. Germany, 6 September 1978, para. 38. See G. Hosein, International Co-operation as a Promise and a Threat, in Cybercrime and Jurisdiction: A Global Survey (T.M.C. Asser Press), 2006. See United States Supreme Court, Smith v. Maryland, 1979, in the case of communications data, and United States v. Miller, 1976, in the case of financial information. 15