A/HRC/13/37 3. The principle of oversight and regulated authorization of lawful access 51. Surveillance systems require effective oversight to minimize harm and abuses. Where safeguards exist, this has traditionally taken the form of an independent authorization through a judicial warrant and/or a subpoena process with the opportunity of independent review. Many policies have attempted to restrict oversight and lower authorization levels, however: communications interception laws have minimized authorization requirements for some communications; secret subpoenas are issued to gain access to information held by third parties and have restricted the ability to seek judicial protections; and States are increasingly allowing intelligence and law enforcement agencies to self-authorize access to personal information where previously some form of independent authorization and effective reporting was necessary. 52. Some States have taken measures to address the erosion of safeguards. In the United States, after a number of court cases and because of the reauthorization requirements under the USA Patriot Act, more opportunities for judicial review have been reintroduced. Changes to the communications surveillance practices in Sweden and the United States have reintroduced some limited safeguards in the form of judicial warrants. Similarly, the European Court of Justice ruled that courts had to review the domestic lawfulness of international watch lists.81 53. The Special Rapporteur is concerned that the lack of effective and independent scrutiny of surveillance practices and techniques calls into question whether interferences are lawful (and thus accountable) and necessary (and thus applied proportionately). He commends the hard work of oversight bodies within government agencies, including internal privacy offices, audit departments and inspectorate-generals, as they too play a key role in identifying abuses. The Special Rapporteur therefore calls for increased internal oversight to complement the processes for independent authorization and external oversight. This internal and external accountability system will ensure that there are effective remedies for individuals, with meaningful access to redress mechanisms. 4. The principle of transparency and integrity 54. The application of secrecy privileges for surveillance systems inhibits the ability of legislatures, judicial bodies and the public to scrutinize State powers. Individuals may be subject to inappropriate surveillance, where profiles are developed through data mining, and erroneous judgements, without any prior notification of the practice. Furthermore, the lack of clear and appropriate limitations to surveillance policies makes it difficult to prove that these powers are not used in arbitrary and indiscriminate manners. 55. The principle of transparency and integrity requires openness and communication about surveillance practices. In some States, individuals must be notified when and how they are under surveillance, or as soon as possible after the fact. Under habeas data constitutional regimes in Latin America82 and European data protection laws, individuals must be able to gain access to and correct their personal information held within data stores and surveillance systems. These rights must be ensured across borders by ensuring that legal regimes protect citizens and non-citizens alike. 56. Open debate and scrutiny is essential to understanding the advantages and limitations of surveillance techniques, so that the public may develop an understanding of 81 82 GE.09-17804 Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, September 2008. See, e.g., Constitution of Brazil, art. 5 (LXXI); Constitution of Paraguay, art. 135; Constitution of Argentina, art. 43. 19