Regulation Of Communivation Networks Surveillance And The Principle Of Proportionality

By: Yuval Shany, Amir Cahane [Israel Democracy Institute]

 

The research will examine the way in which proportionality concerns have been introduced into legislative and other regulatory arrangements governing the power of surveillance over communication networks, including data retention, ‘back door’ requirements, lawful access to data and metadata held by private actors, and direct access to data and metadata by law enforcement agencies (including, data mining, interception, intrusion) 

Arguably, proportionality concern may manifest themselves in the following manners:

  • Temporal and material scope of data retention obligations
  • Requirements for Anti-hacking protective measures for retained data
  • Triggers for lawful and direct access
  • Limits on authorized access 
  • Lack of alternatives for obtaining needed information
  • Arrangements for destruction or return of data after use
  • Institutional safeguards, including notification duties and judicial review
  • Introduction of ‘proportionality by design’ through coding protocols
  • The availability of core-privacy protections

The research will examine the development and application of measures designed in national and regional legal systems to ensure the proportionality of the relevant surveillance authorities, with a particular focus on the notion of proportionality employed, the different proportionality options considered in the course of policy making (and its role in facilitating right limitation by policy makers), difference in regulation of surveillance by police and other security agencies and the actual lessons learned from practice. It will also explore the question of whether common standards can be identified in certain areas of communication networks surveillance, and the reasons for their development or lack thereof. National and regional contexts which may of particular interest in this regards are the US, the UK, France, Germany, the EU, Canada, Chile, Australia and South Korea.