Prior judicial authorisation of individual surveillance is viewed as an important safeguard against abusive practices by the executive. In order to prevent such a judicial authority from turning into a rubber stamp, privacy activists suggest allowing a ‘public advocate’ i.e. an attorney other than the attorney for the government to challenge requests for surveillance authorisations before the judicial authority. This ‘public advocate’ may represent the interests of the individual sought to be surveilled (without getting in touch with the individual) and the general interests of the public against abusive surveillance.

Surely there are merits to this proposition. Without a ‘public advocate’, a judge deciding on a surveillance request will be presented with only the government’s side of the facts. In-fact, over a period of time, judges may only be presented with the government’s interpretation of the law allowing the executive to effectively curate convenient jurisprudence. A ‘public advocate’ offers opportunity for an adversarial proceeding and consequently for the judge to make a better decision.

However, I argue that this remedy operates with limitation. This model may fall into some of the same pitfalls as the rubber stamp courts. It may very well be impossible to ensure that a ‘public advocate’ will effectively represent the interests of the individual concerned or the public at large. Pragmatic details about who might appoint such ‘public advocates’, what service rules will they be subject to, who will they be reporting to, who can fire them and under what circumstances, will impact how well such advocates will serve the intended purpose.

Some of these limitations can be remedied with a more radical solution. Even if a surveillance request by the executive is ex-ante judicially authorised, even if the general interests of the concerned individual is represented by a public advocate, and even if further safeguards such as an effective public oversight mechanism are available, an impacted individual’s due process rights are not fully realised until he is presented with the option to personally challenge the surveillance.

Needless to say, from the perspective of the surveillance seeking executive official, it may be imprudent to allow the concerned individual to be informed when the initial authorisation request is preferred before the judicial authority. But when the surveillance itself has been completed and the period of surveillance for which the authorisation was obtained for has lapsed, the concerned individual may be informed of the surveillance allowing the individual to challenge it if he deems necessary.

Admittedly, this is a complex debate. Other factors maybe be relevant, such as the possibility of investigating agencies seeking further surveillance of the same individual in the near future. Putting the individual in notice that some surveillance was conducted recently, from the perspective of the executive, may be counterproductive. Even if the executive is certain that no further surveillance requests in the near future will be necessary, it might not want to put the individual in notice of an on-going investigation of which some non-surveillance aspects may still be incomplete.

These asserted government interests are regularly cited in arguments against post-facto user notification. According to this view, notifying the individual at any stage of the process, is inherently contradictory to the purpose of secret surveillance. Proponents of this view suggest that notification is not required to enhance the due process rights of the individual. According to them, due process rights are sufficiently ensured because an individual will be able to challenge any information obtained from the surveillance (and by extension the surveillance itself) when it is used in a court proceeding against the individual.

Again, this view does not take into account that the State undertakes surveillance activities for a range of objectives – such as to prevent inconvenient protests against the government, spying on those who fund opposing political parties etc. Only a percentage of surveillance activities are possibly commenced for future use in court proceedings against the relevant individual. Even in such cases, it may not always be disclosed or evident that the information being used against the individual in a court proceeding has been obtained from surveillance of the individual. Accordingly, except in limited instances, individuals are unlikely to know that they were subject to surveillance and therefore unable to challenge it in court.

Certain jurisdictions have made bold attempts in acknowledging that post-facto notification is an essential component of the right to privacy. For instance, in 2007, the European Court of Human Rights (ECtHR? ) noted:

“unless they [individuals subject to surveillance] are subsequently prosecuted on the basis of the material gathered through covert surveillance, or unless there has been a leak of information, the persons concerned cannot learn whether they have ever been monitored and are accordingly unable to seek redress for unlawful interferences with their [..] rights.” (at para 101)

In 2015, developing on the reasoning above, the ECtHR? held:

“absence of a requirement to notify the subject of interception at any point [is] incompatible with the [European Human Rights] Convention, in that it deprive[s] the interception subject of an opportunity to seek redress for unlawful interferences with his or her Article 8 rights and render[s] the remedies available under the national law theoretical and illusory rather than practical and effective.” (at para 288)

This is an important determination. If the concerned individual is not notified, his rights against unwarranted intrusion to his privacy are rendered meaningless. Rights without opportunity to seek remedies are no rights at all.

Accordingly, the dilemma between the interests of the executive in not compromising live investigations and the interests of the individual in being informed of the surveillance post-facto must be resolved in favour of the individual. Post-facto notification also enhances the effectiveness of judicial authorities that are tasked with prior-authorisation and any ‘public advocates’ appearing before them.

To be sure, post-facto notification, by itself, is no-magic wand. Other factors will be at play: the notification recipient must have effective access to judicial forums; the substantive law employed to challenge the surveillance must be ideal; and remedies must be meaningful.