72 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights family, home and correspondence) and may, if improperly targeted, conflict with the principle of non-discrimination. For example, participants and data commissioners raised concerns, particularly at the EU Hearing, about the lowering of thresholds, the reduction in legal safeguards and a trend towards “data-mining” for national security purposes.162 The Panel also received detailed studies and statistical information suggesting that the practice of profiling, while it is not necessarily as such a violation of international law, can be problematic. Profiling practices based on national origin or ethnicity have been over-inclusive and can be discriminatory in impact.163 Clear guidance on the matter is to be found in the reports of the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism (hereinafter: Special Rapporteur on Human Rights and Terrorism).164 Testimony also raised concerns about covert surveillance schemes. Whilst accepting that such schemes could be legitimate, the European Court of Human Rights requires that there be effective safeguards, for example, an independent monitoring body.165 In a similar vein, the UN Human Rights Committee has insisted that measures be introduced to prevent the receipt, processing or use of data by unauthorised persons, or for unlawful purposes.166 On the basis of the complaints received during the Hearings, it would appear to the Panel that some States have not put in place adequate safeguards to prevent such misuse. There is one important problem area which is difficult to regulate and that is the fact that, unless the data gathered is used in subsequent criminal or other proceedings, the individual may never be aware that he or she has been the subject of surveillance. There can be no effective remedy for unlawful interference with a right, unless notification of that interference is provided; the assumption in law would therefore be that, once a surveillance operation is ended, the surveillance subjects should be duly notified. The European Court of Human Rights has accepted that covert surveil- 162 The term “data mining” has been described in one written submission to the Panel (in connection with its US Hearing) as the “suspicion-less investigation” of large groups of people, through the use of linked computerized databases, pattern analysis software, and the creation of a “terrorist profile”. See Kate Martin, Director, Center for National Security Studies, “Domestic Intelligence and Civil Liberties”, in SAIS Review, Vol. XXIV No. 1 (Winter-Spring 2004), submitted to the Panel, EJP United States Hearing. 163 See Open Society Justice Initiative, “Ethnic Profiling in Europe: Counter-Terrorism Activities and the Creation of Suspect Communities”, June 2007, submitted to the Panel, EJP European Union Hearing. 164 See especially Report of the Special Rapporteur on Human Rights and Terrorism, UN Doc. A/HRC/4/26, 29 January 2007, para. 83 et seq.: “Terrorist profiling practices that are based on ‘race’ are incompatible with human rights. Profiling based on ethnicity, national origin, and/or religion involves differential treatment of comparable groups of people. Such differential treatment is only compatible with the principle of nondiscrimination if it is a proportional means of countering terrorism. Profiling practices based on ethnicity, national origin and/or religion regularly fail to meet this demanding proportionality requirement: not only are they unsuitable means of identifying potential terrorists, but they also entail considerable negative consequences that may render these measures counterproductive in the fight against terrorism.” 165 ECtHR, Judgment of 6 September 1978, Klass and others v. Germany, Application No. 5029/71, para. 55 et seq. 166 See UN Human Rights Committee, General Comment No. 16, para. 10.