SZABÓ AND VISSY v. HUNGARY JUDGMENT
21
be sought in circumstances where other available less invasive techniques have been
exhausted.
86. The provision of communications data to the State should be monitored by an
independent authority, such as a court or oversight mechanism. At the international
level, States should enact Mutual Legal Assistance Treaties to regulate access to
communications data held by foreign corporate actors.
87. Surveillance techniques and practices that are employed outside of the rule of
law must be brought under legislative control. Their extra-legal usage undermines
basic principles of democracy and is likely to have harmful political and social effects.
B. Facilitating private, secure and anonymous communications
88. States should refrain from compelling the identification of users as a
precondition for access to communications, including online services, cybercafés or
mobile telephony.
89. Individuals should be free to use whatever technology they choose to secure
their communications. States should not interfere with the use of encryption
technologies, nor compel the provision of encryption keys.
90. States should not retain or require the retention of particular information purely
for surveillance purposes.
C. Increasing public access to information, understanding and awareness of threats
to privacy
91. States should be completely transparent about the use and scope of
communications surveillance techniques and powers. They should publish, at
minimum, aggregate information on the number of requests approved and rejected, a
disaggregation of the requests by service provider and by investigation and purpose.
92. States should provide individuals with sufficient information to enable them to
fully comprehend the scope, nature and application of the laws permitting
communications surveillance. States should enable service providers to publish the
procedures they apply when dealing with State communications surveillance, adhere
to those procedures, and publish records of State communications surveillance.
93. States should establish independent oversight mechanisms capable to ensure
transparency and accountability of State surveillance of communications.
94. States should raise public awareness on the uses of new communication
technologies in order to support individuals in properly assessing, managing,
mitigating and making informed decisions on communications-related risks.
D. Regulating the commercialization of surveillance technology
95. States should ensure that communications data collected by corporate actors in
the provision of communications services meets the highest standards of data
protection.
96. States must refrain from forcing the private sector to implement measures
compromising the privacy, security and anonymity of communications services,
including requiring the construction of interception capabilities for State surveillance
purposes or prohibiting the use of encryption.
97. States must take measures to prevent the commercialization of surveillance
technologies, paying particular attention to research, development, trade, export and