By Brett Wilkins

In times of great crisis, it is often necessary for governments to curtail civil liberties for the sake of security. This is especially true when the crisis at hand is a global pandemic in which swiftly identifying and isolating disease carriers saves countless lives. Conversely, failure to do so will cost countless lives. So how do governments, businesses, individuals and advocates best manage that age-old balancing act between liberty and security, and how can we ensure that emergency measures enacted to tackle the coronavirus don’t end up becoming permanent fixtures of the surveillance state in a post-pandemic world?

Tracking Places and Faces

China, where the COVID-19 outbreak began late last year, was already a leading global surveillance state before the pandemic. Many prominent international observers have been impressed by the way in which the Chinese government, despite some initial stumbling and, very likely, concealing the true number of cases and victims, has handled and largely contained the outbreak within its borders.

Some aspects of China’s aggressive coronavirus response — including the largest lockdown in human history, backed by an army of enforcers who have sometimes literally dragged people with fevers off into quarantine — would face potentially insurmountable resistance in countries with greater civil liberties. However, other methods used in China, including a smartphone app that uses color-coded health ratings to regulate individual travel, are seen as more feasible.

China, already the global leader in the use of facial recognition technology, is using hundreds of millions of face-recognizing cameras to track and manage COVID-19 infection. But China is far from the only country doing this. In fact, in the United States companies including Clearview AI are already in talks with government agencies looking to apply their technologies to combat the pandemic. While civil liberties groups demand a national ban on government facial surveillance, US Customs and Border Protection is currently touting facial recognition as a more hygienic method of airport check-in and security screening. CBP has already introduced biometric facial recognition at select US airports; the agency says it has processed 43 million travelers using this technology.

I’ve Got You Under My Skin

So-called “under-the-skin” surveillance is perhaps the most alarming recent development in tracking and monitoring technology. Technological developments have, for the first time ever, made it possible for governments to monitor all of their people all of the time, and some of them are aiming to do just that in the name of fighting the COVID-19 pandemic. Not only can authorities keep tabs on the citizenry, they can do so in ways that were unimaginable not too long ago. Previously, “when your finger touched the screen of your smartphone and clicked on a link, the government wanted to know what exactly your finger was clicking on,” explained Yuval Noah in a recent Financial Times article. “But with coronavirus, the focus of interest shifts. Now the government wants to know the temperature of your finger and the blood pressure under its skin.”

China is the leader in “under-the-skin” surveillance. However, other countries are also using it. In Moscow, 170,000 security cameras are helping to track citizens and enforce quarantine in the Russian capital. Around 100,000 of these cameras are now linked to Russia’s AI and other facial recognition systems, allowing for “under-the-skin” surveillance. This has allowed police to find nearly 200 people violating quarantine orders. However, rights activists warn that the increasingly authoritarian government under President Vladimir Putin will inevitably use this technology to monitor, track and ultimately persecute political opponents.

It’s not just authoritarian regimes that are using “under-the-skin” surveillance, and not all such surveillance involves cutting-edge technology. A big part of South Korea’s success in controlling coronavirus infection is due to society’s acceptance of intrusive government surveillance. In addition to ubiquitous cameras, cell phone tracking and monitoring of debit and credit card use as well as temperature checks — also used in other countries like Singapore and Taiwan — have proved invaluable tools in controlling the outbreak. Israel has also implemented counterterrorism tactics including “under-the-skin” surveillance to track and, it hopes, better manage the outbreak.

Never-Ending Emergency

History is replete with examples of “temporary” emergency measures turning into perpetual states of emergency, which usually means permanent restrictions on civil liberties and loss of privacy. Perhaps the most notorious example of this among democracies is Israel, whose Emergency Defense Regulations have actually been in place for longer than the country has existed. Enacted by the British Mandatory government in 1945 (Britain ruled Palestine for 30 years before Israel declared its independence in 1948), the EDR, which went into effect during a period of frequent attacks by Jewish terrorists fighting for Israeli independence, provides for military tribunals to try civilians without the right of appeal, allows sweeping searches and seizures, prohibits publication of proscribed books and newspapers and allows for home demolitions, indefinite administrative detention, travel restrictions and curfews.

According to the Israeli human rights organization B’Tselem, over the years Israel has used the EDR in the illegally-occupied Palestinian territories to “punish and deter,” noting that the regulations have “served as the authority for Israel to demolish and seal hundreds of houses, deport residents, administratively detain thousands of persons, and impose closures and curfews on towns and villages.”

This is an extreme example. However, leading privacy experts warn against granting governments open-ended licenses to surveil, knowing that many governments will inevitably seek to expand and even abuse emergency measures. “If the public grants such powers to the government, these powers must expire when the crisis ends, contain strict anti-bias rules, and be subject to strict safeguards and audits,” warns the San Francisco-based Electronic Frontier Foundation (EFF), a leading digital rights group. “Some technologies are so invasive and dangerous to a democratic society that EFF opposes their use. We also must closely scrutinize government-corporate partnerships initiated during the pandemic that may result in the collection and sharing of personal information.”

Privacy experts are warning that people around the world must be vigilant and ensure that “temporary” coronavirus surveillance measures do not become institutionalized after the pandemic. The top United Nations privacy official is warning of just this sort of outcome.

“Dictatorships and authoritarian societies often start in the face of a threat,” Joseph Cannataci, the UN special rapporteur on the right to privacy, told the Thomson Reuters Foundation. “That is why it is important to be vigilant today and not give away all our freedoms.”

The massive infrastructure required to run face recognition — such as cameras, software, and open-ended contracts with vendors —  cannot be easily dismantled when the public health crisis is over, warns EFF:

We cannot allow law enforcement and other government officials to normalize this invasive tactic… It is all too likely that any new use of face surveillance to contain COVID-19 would long outlive the public health emergency. In a year, systems that were put in place to track infected individuals as they moved through a city could be re-deployed to track people as they walk away from a political demonstration or their immigration attorney’s office.

Privacy First?

The combination of smartphone tracking and widespread health monitoring and testing is seen as offering the best chance for societies to regain some sense of normalcy in and after the time of coronavirus. However, experts and advocates around the world are warning governments to carefully consider the balance between public health and civil liberties when planning for the future. In the European Union, where several countries are developing tracking apps, European Data Protection Supervisor Wojciech Wiewiorowski says a single EU-wide app with strong data protection measures built in offers the best chance to manage the pandemic. However, Wiewiorowski cautions that “big data means big responsibility.”

Wiewiorowski’s concern is shared by EFF. “As our society struggles with how to protect public health, we must carefully consider how all manner of government and private decisions may impact our digital rights,” the group said, adding:

Governments around the world are demanding extraordinary new surveillance powers intended to contain the virus’ spread. Many would invade our privacy, deter our free speech, and disparately burden vulnerable groups of people. Governments must show that such powers would actually be effective, science-based, necessary, and proportionate.

To this end, experts in engineering, big data, artificial intelligence and other areas are hard at work creating “privacy-first” surveillance solutions. “There are people who have been waiting their entire lives for a problem that can be solved by exactly the right algorithm,” Peter Eckersley, an Australia-based AI researcher, told NBC News. Eckersley is helping to coordinate a global effort to create a voluntary smartphone-based coronavirus tracking app.

Like it or not, tech companies can already use your phone’s location data to map social distancing. For example, Unacast, a data company that collects and provides cellphone location data and analysis to the retail, real estate, marketing, and tourism industries, has been publishing a Social Distancing Scorecard for the United States as part of its COVID-19 Location Data Toolkit. This has led to some interesting results — in one recent scorecard, Yolo County, California ranked dead last in social distancing in the state, prompting all sorts of “You Only Live Once” jokes among locals and observers alike.

Striking the Right Balance

However, surveillance is no laughing matter and some privacy advocates have taken exception to the fact that, unlike Facebook’s “Data for Good” program, which uses user data to power its Disease Prevention Maps, or Kinsa Health’s use of smart thermometers to detect elevated illness levels for its US Health Weather Map, Unacast is not opt-in. It collects your data from third-party sources, meaning that users might unwittingly grant the company access to location data without knowing it is being shared with Unacast.

Jennifer King, director of privacy at the Center for Internet and Society at Stanford Law School, told Recode that “[Unacast’s] privacy statement basically screams that it’s up to you to monitor which apps you use and your phone settings, if you don’t like the fact that companies like them are getting access to your location data.” King added: “In that respect, at least, it’s a bit more helpful than most notices and gives us a decent map as to how they’re getting the data.”

There are also concerns over governments utilizing data gleaned during the pandemic for wider surveillance purposes. For example, the US Centers for Disease Control and Prevention (CDC) is currently requiring airlines to collect the name and contact information of all passengers and crew arriving in the United States on international flights; the companies must provide this data to the CDC within 24 hours if asked to do so. The CDC says it is using the information to aid in “contact tracing” — identifying people who have been in contact with infected individuals — in order to quickly notify, test and isolate COVID-19 carriers.

“EFF would like the CDC to explain what it will do to ensure this sensitive data is used only to contain communicable diseases,” the rights group said. “For example, what measures will ensure this data is purged when no longer helpful to contact tracing? Also, what safeguards will ensure this newly collected data is not used by police for ordinary crime fighting, or by ICE for immigration enforcement?”

In the end, it all boils down to striking the right balance between health and privacy. How societies and governments succeed — or fail — in this mission will have broader implications that will promote, or plague, privacy efforts long after we’ve beaten the coronavirus pandemic.


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