A/HRC/13/37
searches of the media if there are “special reasonable grounds” that the information has
“substantial value” in an anti-terrorism investigation.49 The Special Rapporteur stresses that
the legitimate interest in the disclosure of confidential materials of journalists outweighs the
public interest in the non-disclosure only where an overriding need for disclosure is proved,
the circumstances are of a sufficiently vital and serious nature and the necessity of the
disclosure is identified as responding to a pressing social need.50
36.
The rights to freedom of association and assembly are also threatened by the use of
surveillance. These freedoms often require private meetings and communications to allow
people to organize in the face of Governments or other powerful actors. Expanded
surveillance powers have sometimes led to a “function creep”, when police or intelligence
agencies have labelled other groups as terrorists in order to allow the use of surveillance
powers which were given only for the fight against terrorism. In the United States,
environmental and other peaceful protestors were placed on terrorist watch lists by the
Maryland State Police before political conventions in New York and Denver.51 In the
United Kingdom, surveillance cameras are commonly used for political protests and images
kept in a database.52 A recent poll in the United Kingdom found that one third of
individuals were disinclined to participate in protests because of concern about their
privacy.53
37.
Freedom of movement can also be substantially affected by surveillance. The
creation of secret watch lists, excessive data collection and sharing and imposition of
intrusive scanning devices or biometrics, all create extra barriers to mobility. As described
in previous sections, there has been a substantial increase in the collection of information
about people travelling both nationally and internationally. Information is routinely shared
and used to develop watch lists that have led to new barriers to travel. When profiles and
watch lists are developed using information from a variety of sources with varying
reliability, individuals may have no knowledge of the source of the information, may not
question the veracity of this information, and have no right to contest any conclusions
drawn by foreign authorities. A mosaic of data assembled from multiple databases may
cause data-mining algorithms to identify innocent people as threats.54 If persons are
prohibited from leaving a country, the State must provide information on the reasons
requiring the restriction on freedom of movement. Otherwise, the State is likely to violate
article 12 of the International Covenant on Civil and Political Rights.55
38.
One of the most serious effects of surveillance measures is that they may lead to
miscarriages of justice and violate due process guarantees. The challenge of gaining access
to judicial review is that some legal regimes may prevent access to the courts unless
individuals can show that interference has taken place, which is precluded by the secretive
49
50
51
52
53
54
55
14
Anti-terrorism Act, third schedule, para. 8.
See also recommendation No. R (2000) 7, of the Council of Europe Committee of Ministers to
member States on the right of journalists not to disclose their sources of information and Ontario
Superior Court of Justice, O’Neill v. Canada (Attorney General), 2006, para. 163.
See L. Rein and J. White, “More groups than thought monitored in police spying”, The Washington
Post, 4 January 2009.
See P. Lewis and M. Vallée, “Revealed: police databank on thousands of protesters”, The Guardian, 6
March 2009.
See A. Jha and J. Randerson, “Poll shows public disquiet about policing at environmental protests”,
The Guardian, 25 August 2009.
See United States National Research Council, Protecting Individual Privacy in the Struggle Against
Terrorists: A Framework for Assessment, Committee on Technical and Privacy Dimensions of
Information for Terrorism Prevention and Other National Goals, October 2008.
See, similarly, Human Rights Committee, B. Zoolfia v. Uzbekistan, communication No. 1585/2007,
2009, para. 8.3.
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