A/HRC/28/39 surveillance practices. Individuals often did not know that they had been subject to surveillance and therefore might lack standing because they could not show sufficient injury. She noted that Governments needed to be more transparent about the surveillance programmes that they were pursuing, to allow for public scrutiny. She also noted that it was important that individuals received specific notice that they had been subject to surveillance after the surveillance had ceased. She further noted that standing rules must be generous enough to allow for meaningful challenge of surveillance programmes. In that respect, she emphasized that the European Court of Human Rights required a sufficient likelihood – not a demonstration – of actual injury. She noted that classified judicial proceedings were problematic, but that some kind of judicial test was nonetheless important. The key challenge was to make those proceedings as transparent and effective as possible. 52. On the question of whether there should be dedicated courts to examine surveillance measures, Ms. Cleveland noted that States needed to find a way to satisfy transparency requirements and democratic oversight, while at the same time allowing for some level of confidentiality. A good option was to have special procedures to deal with classified information, but in regular courts. On that point, Ms. Nyst added that while there was some value in having specialized judges with technical knowledge, it was essential that courts allowed parties to be on an equal footing when challenging surveillance. It was crucial, therefore, that there be no secret courts and no procedure that would allow for secret interpretations of laws. Any court that did not allow for the utmost transparency and scrutiny did not allow the power asymmetry between the individual and the State to be corrected and might in fact serve to legitimize unlawful surveillance measures. C. Specific issues regarding business entities 53. The role of private companies was also raised by several delegations. Some delegations noted that companies had been put under pressure by Governments, or had been compelled to hand over data. Others noted that international Internet and telecommunication technology companies had been developing and executing their own surveillance capabilities or assisting States in their surveillance of individuals. Mr. Nissim noted that the technology used by telecommunications companies was very complicated, but could be accessed by Governments. He referred for example to “deep packet inspection”, which enabled the content of communications to be examined as it was transmitted and thereby allowed Internet service providers to monitor and analyse the Internet communications of users in real time. Mr. Nissim noted that this equipment was used by telecommunication companies to improve the service that they provided to customers, but that it could also be used by Governments for surveillance purposes, without the telecommunication company even being aware of what was happening, as had happened to Orange in the course of its operations.9 54. Many delegations asked that businesses and third parties be more transparent and accountable in their conduct. Some delegations emphasized that a deeper understanding of how intermediaries and other business entities could meet their responsibilities to respect human rights, as well as the identification of the regulatory powers which ought to rest with the public and the private sector, was necessary. Mr. Nissim confirmed that transparency was a key issue for telecommunication companies that were under severe pressure to be more transparent. In that regard, he noted that his chief executive of his company had signed a data protection charter, which committed the company to protecting the security of 9 14 See Human Rights Watch, “They know everything we do: telecom and Internet surveillance in Ethiopia” (March 2014).