a.
b.
c.
d.
Set out the categories of persons whose telephones may be tapped;
Spell out the nature of the offences justifying the use of tapping;
Indicate the duration of the measure;
Explain the procedure for drawing up the summary reports containing
intercepted conversations;
e. Identify the precautions to be taken in order to communicate the
recordings intact and in their entirety for possible inspection by the judge
and the defence; and
f. Clarify the circumstances in which they are to be erased or destroyed (in
particular following discharge or acquittal of the accused).823
26. Digital communications surveillance programmes must meet the requirements
of international human rights law even if it is argued they are necessary on the
grounds of national security or for intelligence purposes.824 Therefore if it can
be shown that there is a legitimate aim and safeguards are in place, intrusive
surveillance may be permitted.825 ‘Mass or bulk surveillance programmes’ are
likely to be considered arbitrary.826
27. Secret surveillance powers is seen to increase the risk of arbitrary abuse of
discretion and therefore such powers should be set out clearly in an accessible
law that has foreseeable effects.827 Secret surveillance, such as the use of
‘watch-lists’, without an effective independent oversight, is seen as a violation
of the right to privacy.828
28. Measures which are undertaken to counteract terrorism have the potential to
violate the right to privacy.829 The Special Rapporteur on the promotion and
protection of human rights and fundamental freedoms while countering
terrorism has urged States to ensure that their surveillance policies comply with
principles of proportionality and necessity and international human rights law.830
29. Vague notions of ‘national security’ will raise concerns if they are used to justify
interference with privacy rights.831
30. States may use surveillance measures if they:
823
European Court, Huvig and Kruslin v France, 24 April 1990.
Report of the High Commissioner for Human Rights. The Right to Privacy in the digital age,
A/HRC/27/37, 30 June 2014, para 23 and 24.
825
Ibid, para 25. European Court, Rotaru v Romania, 4 May 2000.
826
Report of the High Commissioner for Human Rights. The Right to Privacy in the digital age,
A/HRC/27/37, 30 June 2014, para 25.
827
CCPR/C/USA/CO/4, para 22. See also European Court, Teixera da Castro v Portugal, 9 June 1998.
828
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism, A/HRC/13/37, para 26. Also, Human Rights Committee, Communication
1472/2006, 22 October 2008. European Court, Klass v Germany, 6 September 1978.
829
Special Rapporteur on the promotion and protection of human rights and fundamental freedoms
while countering terrorism, A/HRC/13/37.
830
Ibid.
831
A/HRC/23/40, para 58. See also in context of Council of Europe, Recommendation REC (2005)10
of the Committee of Ministers to Member States on ‘Special Investigation Techniques’ in Relation to
Serious Crimes Including Acts of Terrorism, (Adopted by the Committee of Ministers on 20 April 2005
at the 924th meeting of the Ministers’ Deputies).
824
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