The public benefit doctrine in the context of surveillance technologies: Towards a new legal model

Abstract

Existing privacy and surveillance frameworks fail to govern structural democratic harms because their foundational paradigm requires demonstrable individual injury as the threshold for legal intervention. This paper diagnoses that failure through the Israeli constitutional experience, where a 99.3 per cent judicial approval rate for wiretap requests exposes a legal architecture that formally protects privacy while systematically immunising from accountability the institutions most capable of violating it. Drawing selectively on the jurisprudence of the European Court of Human Rights (ECHR) and the General Data Protection Regulation (GDPR) framework, the paper introduces two theoretical innovations. Surveillance Justice Theory reconceptualises privacy violations as structural phenomena with individual, collective, and democratic dimensions, providing courts with a principled basis for recognising constitutional injury without requiring identifiable plaintiffs. The Structural-Dynamic Proportionality Principle reformulates proportionality analysis along institutional and temporal axes, requiring evaluation of oversight architecture and the ongoing validity of authorisation as surveillance capabilities evolve. These innovations are operationalised through the Integrated Constitutional Surveillance Model, a three-tier constitutional framework offering practical tools for courts and policy makers seeking to govern not merely discrete surveillance acts but the systemic conditions that produce structural democratic injury. This article is also included in The Business & Management Collection which can be accessed at https://hstalks.com/business/.