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/.
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Author's Biography
Eyal Sabro LLB, LLM is a private investigator and crisis management expert with over 30 years’ experience. He is the founder and director of a leading investigation company, consistently ranked as Israel’s top private investigation agency in family law. He also founded a law company specialising in family law and privacy protection. Eyal’s extensive experience as a private investigator gives him a unique advantage in handling family law cases. At the same time, his legal expertise enhances his ability to offer comprehensive solutions in private investigations. Eyal serves as a privacy protection consultant for local authorities in Israel and holds certifications in this field, including from the Israeli Bar Association and the National Cyber Directorate. He also has specialised training in family law. In addition to his professional work, he has lectured on witness examinations at Tel Aviv University’s Faculty of Law. A sought-after speaker in private investigations and privacy protection, Eyal is a regular guest on Israeli television programmes and hosts a weekly radio segment. He is the author of four books on private investigations and contributes a regular column on the subject in numerous local and international publications. He is currently a second-year PhD student at the University of Cordoba, researching the legal right to privacy.
Bartolomé Torralbo Muñoz holds a PhD in law from the University of Cordoba and the University of Bologna (2022), having completed a joint doctoral programme under the supervision of Professors José Manuel Palma Herrera and Vittorio Manes. He earned his law degree from the University of Cordoba in 2016, where he began his academic career as a student research assistant in criminal law. He completed his undergraduate thesis in the same field supported by a Spanish Ministry of Education collaboration grant. Following his degree, Bartolomé was appointed Honorary Collaborator in Criminal Law and pursued a master’s in peace culture, conflict, education and human rights, jointly offered by four Spanish universities. His research has focused primarily on corruption, political parties, and illegal financing, while also addressing emerging challenges posed by artificial intelligence (AI) in criminal law. Bartolomé has published extensively, presented at national and international conferences, and completed a six-month research stay at the University of Bologna, earning the International Doctorate distinction. As a lecturer, he has taught core and advanced criminal law courses, supervised numerous theses, and participated in teaching innovation projects, for which he has received additional training and published scholarly contributions.
