of individuals.212 This type of indiscriminate approach also has potentially discriminatory implications. Privacy International have observed that: By starting from a position where everyone is a suspect, mass surveillance encourages the establishment of erroneous correlations and unfair suppositions.213 The General Assembly’s resolution on the right to privacy in the digital age has raised deep concern about the negative impact surveillance carried out on a mass scale may have on the enjoyment of human rights.214 The Special Rapporteur on countering terrorism, Ben Emmerson, has gone as far as to say that the practice of mass surveillance impinges on the very essence of the right to privacy: It is potentially inconsistent with the core principle that States should adopt the least intrusive means available when entrenching on protected human rights; it excludes any individualized proportionality assessment; and it is hedged around by secrecy claims that make any other form of proportionality analysis extremely difficult.215 The European courts have found that laws permitting mass surveillance breach the right to privacy.216 However, where such activity has accorded with the privacy limitation principles 212 David Andersen Q.C. Independent Reviewer of Terrorism Legislation, A Question of Trust Report of the Investigatory Powers Review (June 2015) pg. 78. 213 Privacy International, What is mass surveillance? https://www. privacyinternational.org/node/52 214 General Assembly Resolution on the Right to Privacy in the Digital Age (18 December 2014). 215 Report of Special Rapporteur on countering terrorism, Ben Emmerson (23 September 2014) para. 18. 216 See Roman Zakharov v. Russia, App. No. 47143/06, ECtHR, Judgment (4 December 2015) at paras. 302-304. http://hudoc.echr.coe.int/ eng?i=001-159324. In a case against Russia in 2015, the Court found that a law providing for secret interception of mobile telephone communications violated the right to privacy. The Court noted that a number of shortcomings in the law relating to: circumstances in which they could resort to secret surveillance measures and circumstance in which they could be discontinued; procedures for authorising interception as well as for storing and destroying the intercepted data; supervision of the interception; and effectiveness of remedies; Szabo and Vissy v. Hungary App No. para. 89. In a subsequent case regarding 2016 Hungarian legislation on secret anti-terrorist surveillance that allowed for mass surveillance, the Court found that the law did not provide sufficient safeguards to avoid abuse. The Court reached this conclusion based on the fact that the: scope of the measures could include virtually anyone in Hungary; that the ordering of such measures was taking place entirely within the executive and without an assessment of whether interception of communications was strictly necessary; and lack of effective remedial measures being in place. (i.e. legality, necessity and proportionality) and is subject to effective oversight, the courts have ruled in favour of it. In a case brought against Germany,217 the ECtHR dismissed an application that complained that the German state was monitoring communications in the absence of any “concrete suspicion” and relying on “catchwords” in order to analyse the data.218 The Court found that “strategic monitoring” was not in itself a disproportionate interference with the right to privacy. In so concluding, it had regard to the narrow and closely defined justifications for such collection, the safeguards that governed the authorisation of the collection, the safeguards concerning use of that material and the data protection systems in place.219The Court found that there existed adequate and effective guarantees against abuses of the state’s strategic monitoring powers.220 In New Zealand, the report into intelligence and security legislation noted the practical limitations of mass surveillance and describes the context in which GCSB uses mass surveillance: The reality of modern communications is that it is often not possible to identify and copy a specific communication of interest in isolation. If a particular satellite might carry a relevant communication, the GCSB cannot search for that communication before interception occurs. First it needs to intercept a set of communications, most of which will be of no relevance and will be discarded without ever being examined by an analyst. This is the haystack in which the needle must be found.221 In addition, case law of the ECtHR and the UNHRC have made clear that UN human rights treaty obligations may extend extraterritorially 217 Weber and Saravia v. Germany, App. no. 54934/00, European Court of Human Rights, Decision as to Admissibility (29 June 2006). 218 Ibid. para 9. 219 Ibid. paras. 114-117. 220 bid. para. 137. 221 Cullen/Reddy Report, para. 3.37. The report went on to note that to find the “needle” (the communications that are of intelligence value), the GCSB filters intercepted material for relevance using search terms. At para. 3.38 the report notes that “only those communications that meet the selection criteria are ever seen by an analyst. The GCSB has internal processes in place to ensure analysts justify their use of each search term and record all searches for the purpose of internal audits and review by the Inspector-General of Intelligence and Security.” 42