Handbook: Questions for policy-makers and regulators

Policy-makers and regulators, including political parties, legislators and the courts, play a crucial role in arbitrating the use of surveillance. They are able to develop the legal framework and other instruments for keeping surveillance within limits that express the principles and values of democratic society.

The questions below are among the most important ones upon which these actors need to focus in shaping their legislative, administrative, judicial or regulatory activity. To a certain extent, these questions may already form part of policy-makers’ operational and deliberative practices. They are presented with a focus on resilience. These questions are not offered as a “check-list” for policy-makers and regulators, but rather as a trigger for more reflective self-interrogation and modification of practices. They will enable policy-makers to consider the wider consequences of surveillance.

  1. Is the surveillance necessary, legitimate, transparent and proportional? How are these judgements made? Are there any less intrusive alternatives?
  2. How has the decision to use surveillance weighed up the costs, benefits and risks, including the consequences of surveillance for human rights, freedoms and democracy? Is the decision-making process publicly documented?
  3. What deliberations have taken place concerning the necessity and proportionality of the intrusion into individuals’ private lives by means of the surveillance measure or policy? Is the decision-making process publicly documented?
  4. How have the views of different stakeholders, especially the public, been taken into account?
  5. Have policy-makers identified potential harms – who is harmed by and who benefits from surveillance, what are potential knock-on effects, what are the social consequences? After trying to identify all of the consequences, have policy-makers thought about what they can reasonably do to combat those harms?
  6. What systems are in place for adequate supervision, review and oversight of surveillance practices?
  7. Have the targets of surveillance (which may be the general public) been informed of the existence of the surveillance system and its general purpose? How can they find out more about the scope of the system? How can they seek personal redress for harm? How can they question, or fundamentally challenge the surveillance system?
  8. How can the political and policy-making process best control the proliferation of surveillance?
  9. If surveillance cannot be avoided, how can society be empowered to build capacities to deal with its consequences?
  10. How are the effects of surveillance to be continuously assessed or monitored?
  11. How can international regulatory co-operation and standardisation best meet the challenge of the global flow of personal information?
  12. How can the political and policy-making process best control the proliferation of surveillance?
  13. How can policy-makers and regulators co-operate to promote surveillance-minimising good practices (or responsible surveillance) at the international level?

Return to Contents. Next: Questions for service providers