Tracking COVID-19: What are the implications for privacy and human rights?

CANBERRA — As governments grapple with the best way to respond, track, and trace cases of the coronavirus, rights groups are concerned about the increasing intrusion of government surveillance — and what it will mean for the rights to privacy and human rights generally.

On April 23, United Nations Secretary-General António Guterres released a new policy brief highlighting this growing concern within the U.N. and warned governments of the risks of de-prioritizing human rights.

“We must ensure that any emergency measures — including states of emergency — are legal, proportionate, necessary and non-discriminatory, have a specific focus and duration, and take the least intrusive approach possible to protect public health,” Guterres told media. “The best response is one that responds proportionately to immediate threats while protecting human rights and the rule of law.”

Geoblocking in Taiwan and phototracking in Poland are being used to confirm that people in quarantine are in their homes. China is using public heat sensors to detect if a person has a fever, while heat mapping is being used in the United Kingdom and Italy to confirm that people are social distancing. And in South Korea, China, Singapore, Taiwan, Russia, and Australia, location or Bluetooth tracking for mobile phones has been introduced to support tracing of COVID-19 cases.

These are just some of the ways technology is being used to increasingly surveil citizens in the name of protection against human rights. But when does protection become an infringement on human rights?

Surveillance concerns

In early April, proposed emergency powers in Cambodia were criticized by Amnesty International and Human Rights Watch as overstepping the mark on human rights.

The new powers include provisions to conduct surveillance on all telecommunications mediums “using any means necessary” with powers to censor information.

“These unprecedented powers are wildly disproportionate and threaten to permanently undercut the human rights of everyone in Cambodia,” Nicholas Bequelin, East and Southeast Asia regional director for Amnesty International, said in a statement. “Instead of targeting critics and enacting this draconian law, the Cambodian government should be focusing on protecting the right to health through the prevention and treatment of COVID-19.”

International human rights organization WITNESS, which provides support for using video in advocacy campaigns, has highlighted the issue of digital rights being infringed in its area of operation. Adebayo Okeowo, the program manager for Africa, explained in a webinar for the Columbia Law School that an additional area of concern was the increasing infringement on rights to film and share images of police and military using undue force. In Nigeria, South Africa, and Kenya, enforcement has been used to ensure citizens comply with COVID-19 lockdowns.

“In countries around Africa, we have seen how that right has been trampled upon,” he said. “As a result, we have seen journalists being attacked.” Okeowo noted that there have been fatalities in countries such as Kenya and Nigeria, “in the name of enforcing a lockdown for COVID-19.”

CIVICUS, a global alliance of civil society organizations and activists, has also been drawing attention to what it considers a growing challenge in the coronavirus response. In new research classifying countries on their performance against freedoms during the pandemic, Turkmenistan and Vietnam were rated as “closed” on censorship, and restrictions on access to information within Myanmar had it classed as “repressed.” China was found to be closed on both censorship and surveillance, while in Iran the greatest challenge was the restriction on people speaking out against the government on its response.

In a letter to governments signed by over 600 civil society organizations, CIVICUS members are utilizing the alliance’s reach to call on governments to do more to ensure their response does not mean loss of rights and freedoms.

Why does it matter?

Roseann Rife, East Asia research director at Amnesty International, told Devex that in times of crisis, people are more likely to consent to expanded state powers due to widespread public fear. And this is being taken advantage of.

“Governments in Southeast Asia and across the world have been using COVID-19 as an excuse to widen their powers and to implement lasting and potentially dangerous restrictions on human rights,” she said. “Independent media and civil society play a key role in helping to differentiate between necessary restrictions on rights and freedoms, on one hand, and arbitrary and abusive power grabs, on the other.”

International human rights law requires that any emergency measures must be clearly defined by law, necessary for protecting public health, and strictly proportionate to that aim, Rife explained. “Certain human rights, such as the fundamental requirements of fair trial and the right to be free from torture, cannot be restricted — even in times of emergency,” she added.

For the development sector, the full extent to which rights infringements may impact development and humanitarian work is yet to be seen. But, the introduction of new laws and technology used in the fight against COVID-19 is already risking the rights of the most vulnerable communities.

And there is a more permanent risk on the horizon beyond COVID-19.

“I see two key challenges associated with digital privacy and cyber freedom in the COVID-19 world,” Mamello Thinyane, principal research fellow with the United Nations University, told Devex.

“One is the challenge of protecting citizens’ privacy and freedom in the data technologies that are being deployed to fight the pandemic. The second is restoring citizen’s privacy and freedom — in cases where there were ‘inevitable’ encroachments — after the pandemic.”

The countries that will do well on these challenges, Thinyane said, are those that have good governance and value civil liberties around digital privacy and cyber freedoms. He noted that the human development index could potentially act as a “reasonable proxy” to predict which countries face heightened risk of technology and surveillance creep.

Holding governments accountable

The policy brief from the U.N. incorporates human rights messages for governments to consider — including the need to protect livelihoods, be inclusive of all people in COVID-19 response, the need to work collaboratively, and to support a world better than before when we recover from the pandemic.

Among the recommendations from the U.N. are that all actors — especially governments — ensure that international human rights, humanitarian, and refugee law and standards remain at the center of COVID-19 response.

In response to such concerns, the U.N. additionally calls for governments to ensure emergency powers are not used as “a basis to quash dissent, silence human rights defenders or journalists,” along with implementing safeguards if new technologies are being used for surveillance in response to COVID-19.

But the U.N. also urges governments to look beyond their own citizens and ensure migrants and refugees or those outside their country of origin are protected also, with a moratorium suggested on deportations and other forced returns.

In an online discussion of human rights, AI, and COVID-19, Australian Human Rights Commissioner Edward Santow said it was important at this time to define and understand where the boundary existed for the infringement of surveillance.

“In extreme situations like we face now with the COVID-19 pandemic, governments do have greater flexibility to take robust measures to address the public health emergency,” Santow said. “And that can include restrictions on some human rights which would not be allowed in normal circumstances.”

While Santow said that many of the restrictions, including asking people to stay at home, had generally been accepted in countries such as Australia, without limitations, oversight, and a line drawn to avoid an “intolerable impact” on the lives of people, the result could be a rise in authoritarianism globally. Checks and balances to hold the government to account and restricted time limits on changes are very important, he said.

According to Guterres, governments must be transparent, responsive, and accountable, now “more than ever.”

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