People across the world are currently facing an unprecedented global health emergency due to the outbreak of COVID-19. Technology can and should play an important role during this effort to save lives, including by spreading public health messages and increasing access to health care. However, in the name of combatting the disease, some governments are rushing to expand their use of surveillance technologies to track individuals and even entire populations.

If left unchecked and unchallenged, these measures have the potential to fundamentally alter the future of privacy and other human rights.

Is surveillance to tackle COVID-19 legal?

Governments have an obligation to guarantee the right to health and to prevent, treat and control epidemics. In order to do this, they may temporarily restrict some human rights to respond to health emergencies in timely and coordinated ways. However, increased surveillance measures will be unlawful unless they can meet strict criteria. Governments must be able to show that measures implemented are provided for by law and are necessary, proportionate, time-bound, and that they are implemented with transparency and adequate oversight.

What this means in practice is that surveillance measures must be the least intrusive available to achieve the desired result. They must not do more harm than good.

Lessons learnt from recent history tell us that there is a real danger surveillance measures become permanent fixtures. In the wake of the attacks of 11 September 2001 (9/11), government surveillance apparatus expanded significantly. Once these capabilities and infrastructure are in place, governments seldom have the political will to roll them back.

Using Personal Location Data

Many countries are using cell phone data to track people’s movements in response to the COVID-19 pandemic. Austria, Belgium, Italy, the UK and Germany are all reportedly gathering anonymized or aggregated location data from telecom companies.

Other countries are using cell phone data but without the added protections of anonymization or aggregation. For instance, media reports suggest that Ecuador’s government has authorized GPS tracking to enforce compliance to quarantine. The Israeli authorities’ move to permit the security service to use cell phone data of infected persons has already raised privacy concerns. This system is apparently already operational, with 400 people recently receiving SMS messages warning them of potential contact with infected persons.

In South Korea, authorities have been sending health advisory texts which have been accompanied with personal details of infected patients, including hyperlinks which open to detailed data about their movements. This measure has raised alarm bells because it breaches medical confidentiality and fuels stigma against people with the virus. It does not appear to meet the conditions required for surveillance to be lawful and is a violation of the right to privacy.

These measures raise important questions about how our personal information is collected, used and shared. Once personal data is collected, there is a real danger of it being shared and used for purposes other than health tracking.

Artificial Intelligence (AI) and Big Data

Several states are turning to AI and big data technologies to combat COVID-19. China is reportedly using a mix of ‘smart’ thermal scanners and facial recognition technologies in public places to track the spread of the virus. Chinese tech giant Alibaba has rolled out a health tracking feature that uses data about personal health and assigns a colour-coded health status to an individual. Green is for ‘safe’, yellow requires a seven-day quarantine and red is for a 14-day quarantine. This system is used to determine people’s access to public spaces. Worryingly, the app shares this data with law enforcement authorities.

In Poland, the government has rolled out an app intended to ensure compliance with home quarantining. It reportedly sends prompts for selfies to be uploaded, which are then verified using facial recognition and location data to ensure that the person hasn’t violated quarantine orders. Similar apps are reportedly being rolled out in other countries, including one in India which seeks geo-tagged selfies.

AI technologies could also increase the possibility of unlawful discrimination and may disproportionately harm already marginalized communities. Many of the technologies being deployed use opaque algorithms with biased data and using these in decision-making entrenches discrimination against certain groups.

Governments should not use surveillance technologies which gather forms of data beyond what is legitimately needed to contain the disease. In addition, governments must address data protection and discrimination concerns.

Private Surveillance Companies

While public-private collaborations can provide necessary creative solutions to deal with health crises, many governments are turning to surveillance companies with deeply worrying human rights records.

For instance, controversial surveillance vendors Clearview AI and Palantir are reportedly in talks with US authorities. The Israeli surveillance company NSO Group, which has a history of selling to abusive governments, is now selling a big data analysis tool which claims to track the spread of the disease by mapping people’s movements.

Like NSO Group, many surveillance companies have a history of operating in the shadows and have remained unaccountable for their human rights abuses.

It is critical that companies involved in the fight against COVID-19 identify, prevent, mitigate and account for any human rights risks that may arise from the pandemic context with regard to their operations, products and services. Companies must not use the COVID-19 crisis to evade their human rights responsibilities.

Beyond the pandemic

As we come together to face this unprecedented crisis, it is important to have a long-term view of the measures we are undertaking to combat the virus. These may outlast the crisis and could define what surveillance in a post COVID-19 world looks like. It is important that human rights for all remains at the centre of that vision for the future.