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Surveillance
“in accordance with the law”
UN good practices on mandate and legal basis
Practice 2. The mandates of intelligence services are narrowly and precisely defined in a publicly available law.
Mandates are strictly limited to protecting legitimate national security interests as outlined in publicly available
legislation or national security policies, and identify the threats to national security that intelligence services
are tasked to address. If terrorism is included among these threats, it is defined in narrow and precise terms.
Practice 3. The powers and competences of intelligence services are clearly and exhaustively defined in national law.
They are required to use these powers exclusively for the purposes for which they were given. In particular, any powers given to intelligence services for the purposes of counter-terrorism must be used exclusively for these purposes.
Practice 4. All intelligence services are constituted through, and operate under, publicly available laws that
comply with the Constitution and international human rights law. Intelligence services can only undertake or be
instructed to undertake activities that are prescribed by and in accordance with national law. The use of subsidiary regulations that are not publicly available is strictly limited, and such regulations are both authorized by and
remain within the parameters of publicly available laws. Regulations that are not made public do not serve as
the basis for any activities that restrict human rights.
Practice 21. National law outlines the types of collection measures available to intelligence services; the permissible objectives of intelligence collection; the categories of persons and activities which may be subject to intelligence collection; the threshold of suspicion required to justify the use of collection measures; the limitations
on the duration for which collection measures may be used; and the procedures for authorising, overseeing and
reviewing the use of intelligence-collection measures.
Practice 23. Publicly available law outlines the types of personal data that intelligence services may hold, and
which criteria apply to the use, retention, deletion and disclosure of these data. Intelligence services are permitted to retain personal data that are strictly necessary for the purposes of fulfilling their mandate.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin Scheinin
The establishment of an interference with the right to
private life opens the way for the ECtHR to assess whether
it can be justified under the ECHR (see Figure 3). When it
does so, the court examines whether the interference:
•• is in accordance with the law;
•• pursues a legitimate aim; and
Given the seriousness of the interference in cases of
surveillance, the ECtHR has developed a set of minimum
safeguards for interferences to be deemed in accordance
with the law. These criteria have been established in the
context of targeted surveillance, but they also apply
to general surveillance of communications. The court
summarised them in Roman Zhakarov v. Russia. The
CJEU has embraced a similar approach.
•• is necessary in a democratic society to achieve
that aim.
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