A/HRC/13/37
the necessity and lawfulness of surveillance. In many States, parliaments and independent
bodies have been charged with conducting reviews of surveillance policies and procedures,
and on occasion have been offered the opportunity for pre-legislative review. This has been
aided by the use of sunset and review clauses in legislation.
5.
The principle of effective modernization
57.
Even as more invasive information is available with greater ease, States have not
developed commensurate protection. In fact, in the name of modernizing their surveillance
powers, States sometimes have intentionally sought to apply older and weaker safeguard
regimes to ever more sensitive information.83 Conscious of the need to consider how
technology and policy change may have a negative impact on individuals, some States have
introduced privacy impact assessments that articulate privacy considerations in the design
of new surveillance techniques, including how policymakers considered many of the
principles listed above, including data minimization and rights to redress. The Special
Rapporteur believes that the use of such tools as privacy impact assessments may help
inform the public about surveillance practices, while instilling a culture of privacy within
government agencies as they develop new surveillance systems to combat terrorism.
International standards must also be adopted to require States to enhance their safeguards to
reflect technological change.
IV. Conclusions and recommendations
A.
Conclusions
58.
The Special Rapporteur is concerned that what was once exceptional is now
customary. First, States no longer limit exceptional surveillance schemes to combating
terrorism and instead make these surveillance powers available for all purposes.
Second, surveillance is now engrained in policymaking. Critics of unwarranted
surveillance proposals must now argue why additional information must not be
collected, rather than the burden of proof residing with the State to argue why the
interference is necessary. Third, the quality and effectiveness of nearly all legal
protections and safeguards are reduced. This is occurring even as technological
change allows for greater and more pervasive surveillance powers. Most worrying,
however, is that these technologies and policies are being exported to other countries
and often lose even the most basic protections in the process.
59.
International legal standards must be developed to ensure against these forms
of abuse. This would be aided by adherence to principles outlined in this report,
including ensuring that surveillance is as unintrusive as possible and that new powers
are developed with appropriate safeguards and limitations, effective oversight and
authorization and regular reporting and review and are accompanied by
comprehensive statements regarding the impact on privacy. The general public and
legislatures have rarely had the opportunity to debate whether anti-terrorism powers
are necessary, proportionate or reasonable. The Special Rapporteur believes that
following emergent good practices may prove beneficial to all.
83
20
See the Policy Engagement Network, Briefing on the UK Government’s Interception Modernisation
Programme, June 2009.
GE.09-17804
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