The German GUARDINT team hosted a remote workshop on the role of strategic litigation for intelligence oversight on 11 June 2020. Together with Jane Duncan from the University of Johannesburg, Megan Goulding from Liberty, Bijan Moini from the Gesellschaft für Freiheitsrechte, Thomas Vink from the Digital Freedom Fund, Alexander Ottosson from the Centrum För Rättvisa, Félix Tréguer and Eric Kind (both GUARDINT team members), we discussed the conceptualisation and implementation of indicators for strategic litigation for the Intelligence Oversight Index (IOI).
In particular, the discussion centred around questions of legal obstacles to access judicial review, procedural conditions concerning costs and transparency and the need for transnational cooperation between litigating organisations. We further discussed complex questions like the measurement of success and impact of strategic litigation. A lost case before the court may still be result in policy changes, for example. The participants’ professional insights in the field of strategic litigation are of great value for the further refinement and development of the IOI’s indicators on civil society scrutiny.
The IOI captures two modes of oversight: delegated oversight and civic oversight. Including civic oversight into the IOI challenges the common narrative of citizens as mere exploited and surveilled data subjects and accentuate their agency to contest and shape the actions of intelligence agencies, as well as negotiates democratic values in datafied societies. Strategic litigation represents a crucial aspect of this perspective as it reflects on the judicial remedy mechanisms of states and the potential impact the plaintiffs can expect.