Effective Oversight of Large-scale Surveillance Activities: a Human Rights Perspective

Effective Oversight of Large-Scale Surveillance

Activities: A Human Rights Perspective

Daragh Murray*, Pete Fussey**, Lorna McGregor***, &

Maurice Sunkin QC (Hon)****

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 743

I. FACTORS RELEVANT TO ENSURING THAT OVERSIGHT MECHANISMS ARE

HUMAN RIGHTS COMPLIANT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 747

A. What Does Human Rights Law Say Vis-à-Vis the Type of

Oversight Body? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 748

B. What Type of Oversight Body is Appropriate? . . . . . . . . . . . . 750

C. Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 753

D. Points of Friction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 755

E. The Separation of Authorization and Supervision Functions . 758

II. THE AUTHORIZATION PHASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762

A. The Scope of Authorization Review: Collection and Access . . 762

B. Conducting an Effective Authorization Review . . . . . . . . . . . 763

C. Margin of Appreciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764

III. THE ONGOING SUPERVISION PHASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766

A. Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766

B. Adequate Resources, Including Technical Expertise . . . . . . . 768

C. Links to Ex Post Facto Remedy . . . . . . . . . . . . . . . . . . . . . . . 769

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769

INTRODUCTION

Today, state surveillance involves the large-scale monitoring, collection, and

analysis of digital information. Recent exponential developments in this area

have been facilitated by the transition from analogue to digital forms of commu-

nication, and technological innovations such as the use of machine learning and

artif‌icial intelligence techniques for the ordering, triaging, and analysis of data.

This form of surveillance activity makes possible near-population level monitor-

ing and is used, for example, to surface individuals of potential interest to

* Senior Lecturer, University of Essex. Deputy workstream lead, Human Rights, Big Data &

Technology Project. The authors’ work was supported by the Economic Social and Research Council,

grant number ES/M010236/1. © 2021, Daragh Murray, Pete Fussey, Lorna McGregor & Maurice

Sunkin.

** Professor of Sociology, University of Essex. Research Director, Human Rights, Big Data &

Technology Project.

*** Professor of International Human Rights Law, Director Human Rights, Big Data & Technology

Project, University of Essex.

**** Professor of Public Law and Socio Legal Studies, University of Essex.

743

intelligence analysts, to identify and uncover networks, or to create in-depth indi-

vidual prof‌iles.

To date, commentary on the legality and legitimacy of bulk surveillance

regimes has focused on whether the routine surveillance of large numbers of indi-

viduals is permissible, in and of itself. However, in several recent cases, the

European Court of Human Rights (ECtHR) has held that, in principle and subject

to appropriate safeguards, bulk surveillance regimes may form a legitimate part

of states’ response to national security threats.

1

The signif‌icance of this is that

courts will now have to undertake two tasks. First, to ensure human rights compli-

ance, they must in each case continue to examine whether states’ bulk surveil-

lance activity is “in accordance with the law,” whether it pursues a legitimate

aim, and whether it can be considered necessary, or strictly necessary, in a demo-

cratic society.

2

Second, as part of the necessity test, they must now also examine

whether an “effective” oversight mechanism has been established,

3

raising key

questions as to the nature, composition and practice of such mechanisms.

Identifying and understanding the – still developing – human rights law require-

ments with respect to how large-scale surveillance oversight mechanisms are

established, and how they operate in practice, is the focus of this article.

The ECtHR has found that, if large-scale surveillance regimes are to exist, it is

essential that “adequate and effective guarantees against abuse”

4

– such as an

effective oversight mechanism

5

– are in place to ensure that any interference with

human rights is limited to that which is necessary, or strictly necessary, “in a

democratic society.”

6

As such, ensuring “adequate and effective guarantees

against abuse” requires clarity on the formal mandate and composition of an

oversight mechanism, as well as an understanding of the measures necessary to

deliver this mandate. The diff‌iculty, however, is that the literature and case law

provide very little guidance on the nature of oversight bodies in general.

7

In

1. See, e.g., Big Brother Watch v. United Kingdom, App. Nos. 58170/13, 62322/14, & 24960/15, ¶

314 (Sept. 13, 2018), https://perma.cc/VQH5-D2DW; Centrum for Ra

¨ttvisa v. Sweden, App. No. 35252/

08, ¶ 104 (June 19, 2018), https://perma.cc/C3NV-48QM. The case of Big Brother Watch is currently

pending before the Grand Chamber of the European Court, and so it is possible that certain conclusions

as to the legitimacy of large-scale surveillance regimes, or aspects thereof, may be reconsidered.

2. The precise test is currently unclear. Typically, interferences with rights must be deemed

‘necessary’ in a democratic society. However, long standing case law indicates that large scale secret

surveillance activity must pass a higher threshold of ‘strict necessity.’ See, e.g., Rotaru v. Romania,

2000-V Eur. Ct. H.R. 109, ¶ 47; Szabó v. Hungary, App. No. 37138/14, ¶ 54 (Jan. 12, 2016), https://

perma.cc/UZK6-EAQA; c.f. Big Brother Watch, App. Nos. 58170/13, 62322/14, & 24960/15, ¶ 308

(referring only to a ‘necessity’ test).

3. See, e.g., Zakharov v. Russia, App. No. 47143/06, ¶ 232 (Dec. 4, 2015), https://perma.cc/7MK4-

LKXD; Big Brother Watch, App. Nos. 58170/13, 62322/14, & 24960/15, ¶ 387.

4. Ra¨ttvisa, App. No. 35252/08, ¶ 104.

5. See, e.g., Big Brother Watch, App. Nos. 58170/13, 62322/14, & 24960/15, ¶ 318.

6. Ra¨ttvisa, App. No. 35252/08, ¶ 104.

7. This article draws heavily on comparative literature and case law relevant to the operation of

courts or commissions of inquiry addressing national security issues, such as the Foreign Intelligence

Surveillance Act (or FISA) Courts in the United States, immigration tribunals in the United Kingdom, or

the Arar commission in Canada. Academic commentary on surveillance oversight has steadily grown in

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