A/HRC/10/3 page 9 the first sentence of article 14.1 of the International Covenant on Civil and Political Rights is applicable in any matter dealt with by the judiciary and requires compliance with the basic principles of fair trial.14 31. Although no general norm exists in international law expressly prohibiting or limiting acts of intelligence gathering, it is crucial that States clarify “threshold criteria” that might trigger a whole range of human rights intrusive actions by an intelligence agency, which can range from data mining to covert action.15 Clear legislated powers for intelligence agencies also help to distinguish between the tasks of intelligence and law enforcement agencies. Failure to make these clear distinctions will lead to blurred lines of accountability and to the risk that special powers are used in routine situations where there is no pre-eminent threat to the population.16 2. Minimum thresholds for the gathering of information: the problem of data mining and sharing 32. The increasing use of “data mining” by intelligence agencies, entailing the matching of various databases according to a number of variables, blurs the boundary between permissible targeted surveillance and problematic mass surveillance which potentially amounts to arbitrary or unlawful interference with privacy. There is namely an inherent risk of “over-inclusiveness” (meaning that information is gathered because it may be useful, rather than for a defined purpose) in data mining, as the technical capabilities of this technique can tempt the user towards broadening the definition of what is considered suspicious. 33. In this regard the Special Rapporteur reiterates his recommendations on the issue of racial/ethnic profiling.17 While data mining is not prohibited as such, it should not be allowed to include variables that result in compromising the right to non-discrimination. Data-mining software that performs “sentiment analysis”, which extracts and summarizes opinions from unstructured human-authored documents on the Internet in order to create a terrorist profile - and which is apparently used by intelligence agencies in the United States, Canada, China, Germany, Israel, Singapore and Taiwan18 - must not be used as the basis for deprivation of liberty or inclusion on “watch lists” that may impede air travel, banking, and employment opportunities at airports or in places where radioactive materials are used, such as hospitals. 14 See Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, paras. 7 and 8. 15 Covert action refers to unacknowledged intervention or measures taken by an intelligence agency in the territory or affairs of another country. 16 H. Born and I. Leigh, Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Activities (Oslo, Publishing House of the Parliament of Norway, 2005), p. 29. 17 See also, in general, the Special Rapporteur’s remarks on the use of counter-terrorism practices that are based on terrorist profiles that include characteristics such as the presumed “race”, ethnicity, national origin or religion of a person (A/HRC/4/26, para. 59). 18 The Economist, 25 September 2008.