Abolishing privacy rights in the name of COVID-19

Drastic measures are being implemented across the world to fight the coronavirus pandemic: curfews, assembly bans, social distancing, even tracking via phone data.

While everyone agrees that privacy matters, most people also agree that the drastic measures authorities are taking now are needed to save lives. Yet, one important factor is missing - or deliberately neglected by the governments: checks and balances.

Surveillance bills without limitations

Oftentimes, bills are passed with very broad rights for the authorities, sometimes even without limiting them in time. This brings a very dangerous scenario to mind: Who makes sure that the surveillance rights the authorities across the world are implementing now will be terminated again once the coronavirus is no longer a threat?

9/11 rules still valid

The 9/11 rules implemented in the US after the terrorist attacks 19 years ago are a very good negative example: Earlier this year, the US Senate voted to extend the FBI's expanded powers under the Foreign Intelligence Surveillance Act until June.

Law enforcement agencies in the US now have access to extended surveillance systems such as location tracking and facial recognition. Once implemented, challenging such powers is very hard, if not impossible.

If we take this example as a lesson, it is highly likely that any surveillance laws passed now to fight the corona pandemic might very well stay around well beyond the crisis.

Surveillance rising globally

To prevent the spread of the coronavirus, a third of the world has been placed under lockdown, announcements are made via drones or patrolling police cars - a lot reminds one of the worst distopian scenarios. Both dictatorships and democracies are limiting civil liberties on a massive scale.

The dramatic spread of the coronavirus leading to health systems collapsing suggest that this is the right approach. "We are at war", that's what Macron, President of France, said a few weeks ago. However, the virus is not an army. The war metaphor is being used to justify repressive measures, but it might lead into the next crisis: A destruction of civil liberties around the world.

Another danger is rising before us: Who will close the Pandora's box once it is fully opened?

Temporary measures can be prolonged indefinitely - like the surveillance methods installed in the US after 9/11. Even worse, some countries already pass surveillance laws without any time limitation. Hungary is one of the worst examples.

Hungarian president, Victor Orbán, was never known for his democratic values. To the contrary, he is now obviously abusing the corona pandemic to consolidate power. He has passed a law to protect "against the coronavirus" that allows him to rule by decree and suspend existing laws. Parliament is now closed and future elections are called off. The emergency law also stipulates five-year prison sentences for spreading "false" news, which basically puts a stop to the already-not-so-free press in Hungary, as well as eight-year prison sentences for people who don't follow mandated quarantines.

Throughout history, autocrats have took the chance to seize unchecked powers during a crisis. Hungary's Orbán follows this strategy. The rules he has imposed on his citizens clearly show how the power could be abused: No one can publish their opinion anymore for fear of being sentenced for spreading "fake" news, the opposition might be put under mandated quarantine to make sure they can't get in Orbán's way.

The law does not come with an automatic time limit, but only the President himself can decide when the draconian measures can be lifted. It is unwise to give someone like Orbán the benefit of the doubt. Instead, it's very likely that the newly passed law to "fight the coronavirus" will stick around long after no one is talking about COVID-19 anymore.

Civil liberties are cut everywhere

Another example is Israel where the Prime Minister Benjamin Netanyahu has abused the emergency to postpone his corruption trial, has stopped parliament from meeting, and has enabled extensive surveillance powers to the internal intelligence agency.

Russia now uses face recognition to identify people who are breaking the quarantine. Privacy advocates are worried that this technology might be used to also track opponents of the system - even when the coronavirus is no longer a threat.

Checks and balances are crucial

Snowden agrees that the security measure taken today might outlast the coronavirus. And this a risk he'd rather not take.

We must make sure that the rules we implement today are

proportionate,

do not violate privacy rights,

and - most importantly - automatically expire once the coronavirus is no longer a threat.

The rule of law can't be abolished just because there is a crisis. Our basic human rights can't be abolished just because there is a crisis. Yes, the coronavirus is a severe threat to life and we must take extreme measures to fight the spread. But at the same time, we must make sure that these measures do not help build a surveillance state by destroying our democratic values and civil liberties.

Call for the "Magic App"

Politicians around the world start calling for the "Magic App": This app should contain sensitive health information about everyone, details about who is corona positive or negative, track everybody's movement, and store this information.

The idea is that then officials could find out whom you've been in contact with in the past in case you are tested positive for COVID-19 in the future. This would help track down every potential carrier of the virus and quarantine them as well to make sure that the virus does not spread further.

In theory, this sounds like the perfect solution to the current crisis, and Politicians say that this data would be protected, anonymized or whatever to make sure your privacy rights are not violated. In practice, this would be very hard, because the information - who you are, where you live, how you could be contacted - must be there as otherwise the app would be useless.

While a "Magic App" as described above would be very desirable, privacy advocates argue that this is similarly impossible as an encryption backdoor for the good guys only. Unfortunately, any data that is collected and stored, can be abused by malicious attackers.

Some countries like China, South Korea and Israel don't even try to protect their citizens privacy. Instead, they already use cellphone data to conduct such tracking, which is a severe violation of privacy rights.

Do we have to choose between privacy and saving lives?

In emergencies like the coronavirus pandemic, privacy must be weighed against other considerations, like saving lives.

Lydia Gall, an Eastern Europe researcher with Human Rights Watch, said: "In states of emergency, there may be a need to temporarily derogate from certain rights and procedures but any such measures need to be temporary, proportionate and absolutely necessary from a public health perspective."

The question remains, however, how much data is enough? Who should have access to this data? Only health authorities, or also the police? Who else? Who makes these decisions with Parliaments being dissolved in many countries to also prevent the further spread of the virus?

Proportionate and time limited

It seems like the coronavirus pandemic is the perfect crisis for any authoritarian politician to extend their power now. We must be very careful to not fall for the claims of "All of these draconian, unlimited measures are necessary to save lives."

Measures taken today must be clearly based on the recommendation of health experts and be proportionate to achieve what health experts advise. Every measure must have a very clear end date, latest when a vaccine is available, and governments must state this end date in their emergency laws now.

The Hungarian law, for example, was followed by a very clear letter by the secretary-general of the Council of Europe, the Continent’s key human rights watchdog, to the Hungarian government, stating that "an indefinite and uncontrolled state of emergency cannot guarantee that the basic principles of democracy will be observed and that the emergency measures restricting fundamental human rights are strictly proportionate to the threat which they are supposed to counter."

Nevertheless, Orbán managed to pass this law. Protecting our right to privacy is going to be the next major issue we have to fight for.

Is Pepp-PT the solution?

Fortunately, Europeans have already started to research and develop privacy-preserving technology, which might achieve the same results as privacy-infringing phone tracking: Prevent the spread of the coronavirus.

The hope is currently focusing on the Pan-European Privacy-Preserving Proximity Tracing, or short Pepp-PT. However, to use the technology people would have to have their Bluetooth connection open at all times - a security weakness in itself.

The future will show if apps based on the Pepp-PT technology can adequately protect our right to privacy and prevent the further spread of the coronavirus at the same time.

In that case, we would indeed have a "Magic App".