Law in the Internet Society

COVID-19 & The Boundaries of Privacy – East Meets West

-- By TalMaman - 21 Nov 2020

The COVID-19 global pandemic has brought about unprecedented challenges to individuals, businesses, and governments around the world. While methodologies of approach have varied, the manner by which individual governments are fighting against the deadly, highly contagious COVID-19 virus is telling of its political climate, values and trust in its citizens.

I. Government Surveillance in the East

a. State of Emergency

“According to an epidemiologic investigation, on March 10, you were next to a verified carrier of COVID-19. You must enter into self-quarantine immediately to protect your relatives and the public…” This is an excerpt of text messages sent hourly across Israel to individuals that were found to have been near someone who tested positive for COVID-19. Upon the outbreak of COVID-19, the Israeli prime minister declared a State of Emergency and instructed the Israeli national security agency (Shin Bet) to use its surveillance capabilities, normally utilized against national security threats, to track Israeli citizens’ geolocation. Once an individual is found (via geolocation) to have been nearby a confirmed COVID-19 patient, they must enter into a government-mandated quarantine. Thereafter, Shin Bet will continuously track the individual’s location to ensure compliance. There are no opt-out options, no terms and conditions and no privacy policy. The Israeli government has determined that it knows best, and as such, has invoked its executive powers to surveil its citizens in attempt to fight the pandemic.

Though this use of government power in a modern democracy may seem extreme, it is not unique. The governments of Taiwan, South Korea and Singapore, have implemented similar (and in some cases more invasive) means of tracking their citizens’ whereabouts and tracing the spread of COVID-19.

b. The Price of Geolocation Tracing

While most might agree that the thought of being constantly surveilled is grotesque, the price of such government invasion is beyond measure, as it is yet to be seen how each government will use and protect the goldmine of mass data it collects.

Meanwhile in South Korea, gay citizens have been “outed” by the government’s public sharing of age, gender, occupation and location data of COVID-19 patients. Nonetheless, South Korean citizens have referred to their government surveillance as a “necessary evil” in light of the global pandemic.

Conversely, in Israel many have struggled with fallout from geolocation inaccuracies, leading to claims of technical errors whereby the alleged (COVID-exposed) citizens were in fact at home at the time that the epidemiologic investigation indicated otherwise. Consequently, these “false positives” are preventing citizens from leaving their homes or attending work, due to the mandatory quarantine that follows.

c. Was it worth it?

While the spread of COVID-19 may have been stifled by these extreme and invasive government measures, it certainly has not stopped. In fact, cases in Israel and South Korea have surged over the summer despite the geolocation tracing and quarantine mandates.

In hindsight, this “necessary evil” may be more appropriately deemed a mere “evil”, continuously tracking and storing the whereabouts of citizens, while no end to the pandemic is in sight.

II. Freedom in the West

a. Freedom, Liberty and Autonomy

In a drastic shift to the western part of the globe, the US government has refrained from utilizing its well-established surveillance infrastructure in its fight against COVID-19. Regardless of its broad powers under FISA and both the USA PATRIOT and USA FREEDOM Acts, the Trump administration has not implemented a country-wide surveillance tracing system. Contrarily, several senators introduced the COVID-19 Consumer Data Protection Act, aimed to safeguard individual’s personal health, device, geolocation or proximity information from various privately-developed tracing app companies.

Recognizing a potential need, in unprecedented collaboration, tech-giants Apple and Google jointly developed a feature that detects and alerts users of encounters with COVID-19 patients. However, it is not currently linked with local health authorities, and more importantly, most Americans are either unwilling or unable to use the app. When left to choose for themselves, in contrast to citizens of eastern countries, Americans have chosen to be left alone. Unfortunately, without a vast majority of the population opting-in, the app is useless.

b. Government Hypocrisy and Individual Egotism

Freedom, individual liberties, and autonomy have long been part of American values and are reflected throughout the US Constitution. However, this did not stop numerous administrations from surveilling American citizens. The NSA has been surveilling Americans for decades, both legally and illegally. Furthermore, the Congress has been sitting on the sidelines, watching as Americans’ privacy is being butchered and abused by social media platforms and tech giants.

Concurrently, individuals have willingly granted various platforms and apps their geolocation for the mere convenience of finding a nearby brunch spot. Yet for most, sharing their location for the sake of public safety appears to be too invasive.

III. A Hierarchy of Values?

While the appropriate trade-off between individual liberties and national security will be debated for years to come, the tools employed by each government in its fight of COVID-19 may be telling of its values and overall trust in its constituents. Government mandates and surveillance in the East indicate a lack of trust in individuals to adhere to health recommendations that, allegedly, are in the best interest of the public. In this case, government assumes a paternalistic role, authoritatively deciding that the preservation of health and safety protocol outweighs individual privacy. On the other hand, a lack of such mandates across the US may be a signal of the government’s trust that individuals will voluntarily follow health recommendations. It is also reasonable to conclude that, perhaps, the absence of US government involvement is simply a result of the political climate in which COVID-19 has emerged. Amid an election season, it is not surprising that any administration would refrain from unpopular or controversial acts. With the possibility of a drastically different administration on the horizon, however, we may expect more government involvement and mandates. It remains to be seen what measures a different administration may take in an attempt to tame the global pandemic.

A very good start, leaving little—I think—that can be done to improve it along its current lines. Your prediction that there will be more surveillance measures under an administration more determined to confront the virus with national policy is, I think, wrong. The prospect of any national administration further inflaming libertarian sentiment over surveillance is slim at best. mask mandates at the national level are conceivable, but efforts to collect location data are not. Nonetheless, it's an interesting speculation for you, given the lousy results achieved by automated contact tracing not only in Israel, South Korea, and China, the cratering of the UK app, etc., but also by the success of local, human-led public halth work in Vietnam. In the end, it may be that the experience of this epidemic will have discredited surveillance more than supporting it.

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r2 - 29 Dec 2020 - 18:03:23 - EbenMoglen
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