By Jay Ettinger
Imagine if in response to COVID-19 the U.S. government announced a new program in which large tech companies such as Facebook, Google and Amazon shared personal data collected through their apps with various government agencies including local law enforcement. The government then used this data to track and collect information about your location, identified who you have been in contact with, and ultimately, assigned you a color code (green, yellow, or red), which determines whether you can move freely or whether you must quarantine or report to local officials. This is the type of system that is now being implemented across China using the ubiquitous app Alipay, which has over 900 million users in China.[1] The system uses big data to draw automated conclusions about whether someone is a contagion risk and assigns them an associated color code without providing citizens with information about how their decisions are reached.[2]
Other nations have also used emergency powers to access private personal data. For example, in Israel, Prime Minister Benjamin Netayahu has authorized the country’s internal security agency to tap into a vast and previously undisclosed trove of cellphone data in order to retrace the movements of people who have contracted COVID-19 and to identify those who may have come into contact with those individuals.[3] Given the scope and seriousness of the threat posed by COVID-19, extraordinary measures such as these may appear as an appealing short-term solution. However, the global community should be vigilant to the threat of lasting human rights erosion posed by the expansive use of emergency powers.[4]
The right to privacy is a fundamental human right, recognized in article 12 of the Universal Declaration of Human Rights (“UDHR”), article 17 of the International Covenant of Civil and Political Rights (“ICCPR”), and in many other international and regional human rights instruments.[5] Under article 17 of the ICCPR any interference of this right is only permissible if it is neither “arbitrary nor unlawful”.[6] According to the United Nations High Commissioner for Human Rights, those words have been consistently “interpreted . . . as pointing to the overarching principles of legality, necessity and proportionality.”[7] International human rights law does allows states to limit the full exercise of derogable rights provided by ICCPR when the country is faced with emergency challenges. However, General Comment No. 29 of the Human Rights Committee makes clear that the requirement of strict necessity relates to the duration, geographical coverage and material scope of the derogation.[8] In particular, in relation to the duration of a derogation, the Human Rights Committee states that “measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature”.[9]
Although a global pandemic likely qualifies as an emergency challenge that justifies some degree of derogation, it is imperative that measures implemented by states are proportional, temporary in nature, and do not violate non-derogable human rights. States are often reticent to give up emergency powers once they are exercised. A prime example is the continuing erosion of the right to privacy justified as necessary for countering-terrorism. By framing the threat posed by terrorism as an ever-present emergency challenge, states have implemented increasingly intrusive measures that would otherwise represent violations of the right to privacy.
Consider the example of biometric data collection as a part of travel. The High Commissioner for Human Rights stated that the “creation of mass databases of biometric data raises significant human rights concerns.”[10] Further stating that “[s]uch data is particularly sensitive, as it is by definition inseparably linked to a particular person and that person’s life, and has the potential to be gravely abused.”[11] However, this consideration did not stop the UN Security Council from adopting Resolution 2396, which requires that states develop and implement systems to collect and share biometric data as a means to track foreign terrorist fighters.[12] This pattern has not only occurred at the international level. States have frequently used the ever-present emergency challenge of terrorism to enact highly repressive domestic legislation that violates human rights obligations.[13]
The understandable fear and pain caused by the COVID-19 epidemic will undoubtedly leave a scar on the psyche of nations around the world. Governments and citizens share a desire for urgent and drastic action in order to reduce the harm and suffering experienced by all people. While extreme measures may be necessary in the short-term, citizens and the global community must be watchful that these measures are proportional, temporary and legal. Emergency challenges must never be used as a means to erode fundamental human rights.
[1] Paul Mozur et al., In Coronavirus Flight, China Gives Citizens a Color Code, With Red Flags, N.Y. Times (Mar. 1, 2020).
[2] Id.
[3] David M. Halbfinger et al., To Track Coronavirus, Israel Moves to Tap Secret Trove of Cellphone Data, N.Y. Times (Mar. 18, 2020).
[4] See generally Fionnuala Ní Aoláin, Int’l Human Rights Law and Trump’s Invocation of Emergency Powers, Just Security (Jan. 14, 2019) (discussing the threat of normalized emergency law to international human rights law).
[5] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948); International Covenant on Civil and Political Rights, S. Exec. Rep. 102-23, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR].
[6] ICCPR, supra note 3, at art. 17.
[7] U.N. High Commissioner for Human Rights, The Right to Privacy in the Digital Age, A/HRC/39/29 (Aug. 3, 2018).
[8] Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State of Emergency CCPR/C/21/Rev.1/Add.11 ¶ 4 (Aug. 31, 2001).
[9] Id. ¶ 2.
[10] U.N. High Commissioner for Human Rights, supra note 7, ¶ 14 (emphasis added).
[11] Id.
[12] S.C. Res. 2396, ¶ 15 (Dec. 21, 2017).
[13] See e.g., China: Disclose Details of Terrorism Conviction, Human Rights Watch (Mar. 16, 2017) (describing China’s use of broad anti-terrorism laws to repress Uyghurs in Xinjian province).