Pandemic dilemma: Emergency surveillance won’t be easy to unplug

The coronavirus pandemic has brought into sharp focus the work of doctors, nurses, and delivery workers. Less obvious, but equally significant, is the work of those in an altogether different field: surveillance.

As they scramble to bring the pandemic under control, governments around the world are implementing or considering the use of sophisticated, and at times intrusive, monitoring techniques.

Technology – including surveillance drones, facial recognition algorithms, and smartphone geolocation trackers – has emerged as a powerful weapon in the battle against COVID-19. But its rapid deployment raises important ethical questions reminiscent of those raised by the war on terror.

Many observers are voicing the concern that extraordinary measures implemented today will become permanent.

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“The single largest, immediate challenge we are seeing is an explosion of emergency or exceptional laws across the globe,” says Fionnuala D. Ní Aoláin, a law professor and the United Nations special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

Emergency powers, once enacted, are rarely rolled back, she says. “Even if they are created on the basis of being temporary aberrations, they essentially become permanent additions to the legal architecture of the state,” she warns.

An opportunity seized?

International law makes provisions for states to limit citizens’ rights during a crisis, but the danger is overreach. Professor Ní Aoláin says it worries her that many of the legislative measures being adopted around the world have a “pre-cooked” quality.

Hungarian Prime Minister Viktor Orbán seized on the COVID-19 crisis to cement executive powers. In the United Kingdom, there are concerns that the government’s emergency powers under the Coronavirus Act – a document more than 300 pages long – will relax restrictions on mass surveillance. Israel wants its intelligence services to track those who have the virus. 

Emergency measures have spread from Europe, collectively the epicenter of the pandemic, to the United States, the country with the most confirmed cases. Governments are turning to telecommunications companies, social media platforms, and app developers for help monitoring individuals who contracted the virus and identifying at-risk clusters – with and without consent, with and without anonymizing personal data.

Human rights and privacy advocates say a cautionary tale on mass surveillance taken to the extreme can be found in China, which even before the pandemic had employed that measure to repress dissent in Xinjiang, home to the ethnic Uyghur minority.

Wuhan, a city of 11 million people in Hubei Province and the point of origin of the coronavirus outbreak, had been placed under full lockdown, and appears to be emerging from the crisis. But a phone app now determines whether Chinese citizens should remain in quarantine or have the right to move freely, all while sharing personal data with local authorities. 

“There are interests and obviously appetites for governments to take advantage of this opportunity to test out tracking and privacy-breaking technologies,” says Alex Gladstein, chief strategy officer at the Human Rights Foundation, a global nonprofit that focuses on authoritarian regimes. “Even in open societies, like Taiwan and South Korea, you are unfortunately seeing very aggressive surveillance tracing of people in quarantine or who are positive.” 

Health of the many

The practice of surveilling and restraining those believed to be contagious is nearly as old as civilization itself. Chapter 13 of Leviticus details which dermatological symptoms call for forcible isolation by public authorities. Writing in the first century B.C., the Roman statesman Cicero coined the motto “salus populi suprema lex esto” – “the health of the people should be the supreme law” – a phrase that John Locke, writing nearly 1,700 years later, would characterize as a foundational principle of government.

“There is an old-fashioned law that the health of the many outweighs the rights of the individual,” says Howard Markel, a physician and historian of medicine at the University of Michigan. “We’re all neighbors. We’re all responsible for one another.”

Our modern conception of quarantine dates to 14th-century Venice, Italy, when some arriving ships would be required to sit at anchor for 40 days – quaranta giorni in Italian – in an attempt to contain the bubonic plague. The rise of germ theory in the 19th century further cemented the ethos that broad police powers were justified in the face of infectious disease. By 1905, in response to a smallpox outbreak in Cambridge, Massachusetts, the U.S. Supreme Court established that the rights of the individual must be subordinate to reasonable public health measures.

Perhaps the most famous example of overreach by public health officials is the story of Irish immigrant Mary Mallon, better known as Typhoid Mary. A cook for wealthy families in the New York City area at the turn of the 20th century, she was an asymptomatic carrier of typhoid fever. After several members of the families she cooked for fell ill, authorities identified her and forcibly quarantined her on North Brother Island. Three years later, Ms. Mallon was released on the condition that she not work as a cook. But she returned to preparing food, and was placed back in quarantine for the rest of her life – all told, nearly three decades in isolation.

Her plight represents “the quintessential example of what happens when public health comes into conflict with civil rights,” says medical historian Judith Walzer Leavitt, author of the 1997 book “Typhoid Mary: Captive to the Public’s Health.”

Most of the stringent public health laws remained intact through the rise of the civil rights and civil liberties movements of the 1960s and 1970s. It was only with the HIV/AIDS epidemic near the end of the 20th century that the tension between privacy and public health came to the forefront. 

Reflecting on the lessons learned from that epidemic, UNAIDS Deputy Executive Director Shannon Hader argues that trust, engagement, and the cooperation of communities are indispensable to truly conquer COVID-19, as is the ready access to services for those who need them.  

With trust, she adds, comes the most reliable data.

“In the HIV response, we’ve seen effective surveillance systems with extremely private information put into place that have strict protections and have had no breaches of confidentialities,” says Dr. Hader. “Yes, there are absolutely ways – even with new technologies and artificial intelligence – to do sound and important public health surveillance that does not compromise the health and safety of individuals.”

Need for oversight

From the World Health Organization in Geneva to the Massachusetts Institute of Technology, efforts are underway to develop apps that could help contain the pandemic. One challenge is that privacy laws around the world have struggled to keep pace with technological advances that have delivered facial recognition, biometrics, artificial intelligence, and big-data analysis.

But Joe Cannataci, the U.N. special rapporteur on the right to privacy, says that a data-driven response to the coronavirus is possible while still adhering to ethical standards.

“We shouldn’t be surprised that in exceptional circumstances exceptional measures should be taken,” says Professor Cannataci from his home office in Malta, where he is adhering to a precautionary 14-day quarantine after extensive travel. “The problem is, however, do we have the right safeguards in place? Do we have the right oversight systems in place?” 

Roughly a third of countries worldwide have no privacy laws at all. Experts consider Europe’s General Data Protection Regulation, which came into force in 2018, as the closest thing to an international gold standard. However, as Professor Cannataci points out, it does not apply to security services.

What does apply, at least in the context of the 47 states of the Council of Europe plus eight other ratifying nations, is Convention 108. This imposes the obligation to introduce surveillance that is necessary, proportional, and provided for by law in a democratic society.  

The right safeguards, in his view, would take the form of a supervising authority that is independent and set up by law, and includes both legal and technological experts in the authorization process for surveillance operations. “You have to have very clearly specified data searches, very clearly specified surveillance, and very clearly specified time periods,” says Professor Cannataci. “You can’t do this all the time.”

“The risks are that you leave the system in place, and instead of saying coronavirus, instead of flagging the people with coronavirus, you flag all those people who are critical of the government,” he adds. “The tools can be so misused that they would make 1984 look like kindergarten. Big Brother would become Little Brother compared with what the state can do.”

Self-censorship

As many countries explore surveillance options, Israel stands out for its explicit intention to repurpose technology designed to tackle suspected terrorists to instead track down information that is useful in fighting the coronavirus.

The Israeli government approved emergency powers for its internal security agency to do so, but met immediate pushback from private and civil rights advocates who find the measure too extreme. The Supreme Court stepped in, issuing an order to bar the use of such technology until a parliamentary committee can be set up to oversee its workings.  

But the parliament has not been functioning amid a power struggle between the caretaker government and the opposition following the most recent elections. In the meantime, the Shin Bet, Israel’s version of the FBI, continues to use cellphone data to trace where coronavirus-positive people have been and who they would have come into contact with. Israelis joke that if you have an extra blue check on your WhatsApp messaging app, that means Shin Bet has read the message as well. 

Critics of the policy worry it will put a damper on political expression and mobilization.

“When people know they are monitored, they regulate their behavior,” notes Michael Bar-Sinai, a computer science and privacy researcher at Ben-Gurion University of the Negev. “So if Big Brother is watching you, you always try to behave in a way that would not annoy Big Brother, especially when your democracy is very fragile as we see now. It could prevent people from self-organizing in their own self-interest.”

Yohanan Plesner, president of the Israel Democracy Institute and a former lawmaker, does not buy the slippery-slope argument of critics that tracking citizens in the age of the coronavirus necessarily marks a decline in Israel’s democracy.

He sees it as an innovative and possibly effective tool for safeguarding public health, provided it is used for a limited time and with parliamentary oversight.

“I don’t think privacy is an absolute value, and public health is also an important goal. Since every individual has a cellphone, we can make good use of this to save lives.”

Staff writer Eoin O’Carroll in Amherst, Massachusetts, and correspondent Dina Kraft in Tel Aviv, Israel, contributed reporting.

Editor’s note: As a public service, we’ve removed the paywall for all our coronavirus coverage. It’s free.