CHAPTER 12: CIVIL SOCIETY
increased provision of transparency reports by service providers was noted, further
submissions highlighted the need for a more permissive regime to allow service
providers to report,13 or the need for regulated standards for and increased mandatory
reporting. As well as such mandatory provision, increased detail in the statistics
released was also urged,14 particularly in relation to:
(a)
increased reporting of and detail as to the purpose for which data is requested
(for both interception and communications data), set out in clear and specific
categories;15
(b)
the specific use to which data is put;
(c)
the amount of data collected pursuant to each warrant or authorisation as well
as the number of individuals affected;
(d)
greater depth as to what kind of person is targeted and why; and
(e)
information on rejections of applications.
12.17. More broadly, many are of the view that the public authorities could make significantly
more information available regarding the way that they operate.16 While some argued
for a detailed unclassified description of the scale and scope of activities undertaken,
others sought more specific information, including sample selectors, target acquisition
rules, exemplary warrants, procedures for data minimisation and the length of time for
which data is stored. Alternatively, security and intelligence agencies could publish
concrete policies or at least summarise the legal advice or assumptions on which they
are operating. This would allow review and, if necessary, challenge of the legality of
the system.
12.18. Finally, some of the submissions highlighted the need for mechanisms to allow more
individuals to gain sufficient information to be able to challenge actions undertaken
against them. This includes notification of those wrongly targeted by surveillance, 17
as it was noted that in a number of jurisdictions such a duty exists and operates
successfully,18 as well as the lifting on the ban on the use of intercept material at trial.
Again it was urged that this would create greater opportunity for further scrutiny of any
wrongful acts.
13
14
15
16
17
18
As set out in the submissions from Access, Peter Gill and the Global Network Initiative.
By, in particular, Big Brother Watch.
Steps have already been made by IOCCO in this regard, which published statistics for
communications data in the IOCC Report (April 2014), and both communications data and intercepted
material in 2014 in the IOCC Report, (March 2015). This represents an improvement, although the
statistics are limited: for interception in particular the statistics were at a high level of generality (it was
indicated that 31% of warrants related to national security, 68% to serious crime, and 1% to a
combination).
See for example the submissions of the Global Network Initiative and DEMOS.
As urged by, for example, Human Rights Watch, the Global Network Initiative and Liberty.
According to the submission I received from the Bingham Centre for the Rule of Law, this includes
Belgium, Bulgaria, Canada, Germany, Ireland, the Netherlands, New Zealand, Sweden and the United
States. However, I note that in the Report of Ben Emmerson QC, the Special Rapporteur on the
promotion and protection of human rights and fundamental freedoms while countering terrorism,
A/69/397, it is noted that “very few States” have provisions for such ex post notification, at para 50.
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