1) Use of surveillance techniques for the indiscriminate and untargeted surveillance of protesters and the organisers of protests, both in physical space and digital technologies, should be prohibited.
2) Law enforcement can only subject individual protesters and organisers to targeted surveillance where there is a reasonable suspicion that they are engaging in, planning to engage in, or about to engage in a serious criminal activity.
3) Surveillance should be in line with the test set out in Principle 4 and each use must be approved by a court, be of limited duration and conducted in a manner that is appropriate to achieve the specific legitimate aim identified. The need for surveillance must be frequently reviewed and should cease once the purpose is no longer identified. This requires that states should, at the least, establish the following before the courts and other independent adjudicatory bodies which authorise surveillance, prior to conducting surveillance:
a) There is a high degree of probability that a serious crime or specific threat to a legitimate aim has been or will be carried out;
b) There is a high degree of probability that accessing the protected information would lead to relevant and material evidence of a serious crime, or specific threat to a legitimate aim;
c) Other less invasive measures have been exhausted or would be futile, meaning that the technique used is the least invasive option;
d) Information accessed will be confined to what is relevant and material to the serious crime or specific threat to an alleged legitimate aim;
e) Any excess information collected will not be retained, but instead will be promptly destroyed or returned;
f) Information will be accessed only by the specified authority and used only for the purpose and duration for which authorisation was given.
4) All protesters and organisers who are subject to surveillance should be notified of a decision authorising surveillance with enough time and information to enable them to challenge the decision or seek other remedies, and should have access to the materials presented in support of the application for authorisation. Delay in notification is only justified only if:
a) Notification would seriously jeopardise the purpose for which the surveillance is authorised, or there is an imminent risk of danger to human life;
b) Authorisation to delay notification is granted by an independent and impartial court, tribunal or other independent adjudicatory body; and
c) Affected individuals are notified as soon as the risk of danger to human life has passed, as determined by an independent and impartial court, tribunal or other independent adjudicatory body.
5) The obligation to give notice rests with the state, but communications service providers should be free to notify individuals of any communications surveillance, voluntarily or upon request.
6) Identifying data about protesters or organisers gained through surveillance should not be retained or shared unless essential for an ongoing criminal investigation or pending prosecution.
7) While it is legitimate for the police to keep the details of particular investigations confidential, decisions about overall surveillance policies should be openly discussed. The policies and procedures for the use of surveillance technologies in protests should be explicit, written, and made public.
8) In recognition of the fact that recording and image gathering in public areas by law enforcement, Closed Circuit Television (CCTV), Unmanned Aerial Vehicles (UAV) and related technologies, which are used to monitor a variety of environments and activities, might breach the right to protest, states should make sure that:
a) The use of these techniques is subject to strict regulation;
b) Bodies using the respective technologies ensure that there is visible notice to the public informing them that they are being, or may be, monitored;
c) Images of identifiable individuals captured by these technologies should not be retained or shared unless there is reasonable suspicion that the images contain evidence of criminal activity or are relevant to an ongoing investigation or pending criminal trial;
d) Deployment and policy decisions surrounding these technologies should be democratically decided based on open information;
e) Investment in these technologies should be made only after a clear, systematic examination of the costs and benefits involved. If such technology is deployed, independent audits should be put in place to track their use.
To comment in detail on state duties regarding the use of surveillance on protesters, click here