Published in July 2018.
This module is a resource for lecturers
Accountability and oversight of intelligence gathering methods
The Module so far has focused on the substantive aspects of the right to privacy and intelligence gathering methods. This section now turns to considering some of the procedural safeguards necessary to address at least some of the concerns identified during the substantive rights discussion, namely judicial and non-judicial oversight to ensure that appropriate checks and balances are in place. Such oversight and accountability mechanisms play a pivotal role in promoting adherence to the rule of law by States and should extend to intelligence gathering activities during both peacetime and in situations of armed conflict.
One of the most important mechanisms here is that of the judicial oversight of interception and surveillance activities, procedures and so forth, which is what several the United Nations and regional human rights bodies and independent special mandates holders have argued for. For instance, the Human Rights Committee has recommended that courts have oversight over the authorization of surveillance measures, and over the performance of law enforcement and intelligence agencies (concluding observations CCPR/C/USA/CO/4, para. 22). According to the United Nations High Commissioner for Human Rights, an independent, impartial and transparent judiciary is the minimum safeguard the international human rights law requires. The Committee, like many others, advocates against the sufficiency of any oversight offered by an executive official, such as a Cabinet minister, to authorize interceptions of communications and surveillance measures. Not only do such measures lack at least the appearance of independence or impartiality since intelligence agencies are entities of the executive, but such officials may also lack any power to make binding decisions on compliance of the decisions with international human rights standards (General Assembly, Human Rights Council report 27/37, paras. 38 and 41).
Consequently, it has been advocated that law enforcement and intelligence officials ideally should seek a court order to intercept an individual's communications or to conduct surveillance for an interference to be lawful in accordance with the principles and tests explained earlier in the Module, including necessity and proportionality. Independent officials, namely judges, benefit not only from necessary standards of impartiality and independence, but are also more likely to apply uniform criteria proscribed by law to assess whether a particular interference with an individual's right to privacy is lawful ( State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005).
In addition to judicial oversight, it is desirable for all branches of the government to be involved in overseeing the surveillance programmes of intelligence agencies ( State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, 2005, para. 37). This is more conducive to individuals having an effective remedy. The Human Rights Committee has emphasized that States should establish "strong and independent" institutions to oversee the work of government agencies involved in gathering intelligence including as a deterrent for potential misuse of power. The High Commissioner for Human Rights further explained that Parliamentary committees may lack independence and should therefore be supplemented by the establishment of independent bodies to oversee the work of intelligence agencies (General Assembly, Human Rights Council report 27/37, para. 38). Moreover, the possibility of sanctions being imposed on law enforcement and intelligence for failure to respect the right to privacy creates an impetus for public officials to adhere to the law.
There is some variation between what kind of oversight measures international and regional human rights bodies require over the law enforcement and intelligence agencies. Unlike the Human Rights Committee, the European Court of Human Rights (ECtHR) pronounced that it is not mandatory to have judicial supervision over the decision of government organs to intercept communications or to conduct surveillance. As the Court explained in Klass and others v. Germany, although it is desirable that a judge supervises the decision of a government organ to limit an individual's enjoyment of the right to privacy, the State is entitled to use alternative supervision mechanisms. For instance, in this particular case the Court thought that it was sufficient that an official qualified for judicial office supervised the decision to intercept an individual's personal communication. Moreover, a Parliamentary Board which was independent of the Parliament exercised oversight over the law enforcement and intelligence agencies ( Klass and others v. Germany, 1978, paras. 55-56, 58-59; Roman Zakharov v. Russia, 2015).
The Inter-American human rights system has also considered issues relating to procedural safeguards. Its approach has been to require that independent authorities should be established which authorize an interference with the right to privacy, and which monitor the operation of law enforcement and intelligence agencies (Organization of American States, 2013). The Inter-American Court of Human Rights (IACtHR) places considerable importance on the use of procedural safeguards. Government officials should obtain orders from independent officials. Such officials should not rubber stamp the decisions of law enforcement and intelligence organs. IACtHR found in the case of Escher et. al. v. Brazil that the police may monitor the telephone conversations of a social organization only in cases where the judge in issuing the order explained how the law applied to the factual situation at hand (2009, para. 132).
A further safeguard proposed by Special Rapporteurs to the United Nations and to the Inter-American Commission has been that private entities which collect information about their clients should inform their customers as soon as is possible about any requests for information they receive from government organs, and about the number and scope of such requests. Furthermore, they have proposed that States should raise awareness among the citizens about their right to privacy (Organization of American States, 2013).