By Alicia Ely Yamin
1. The crisis exposes dramatically different impacts on the distinct interests protected as “privacy” rights.
Life in democratic societies is enhanced when the law protects what information and aspects of intimate personal life an individual shares with others.
But the pandemic has accelerated the use of a variety of surveillance technologies, which are now being introduced and/or rapidly expanded to trace the virus, and in turn individuals’ movements and lives. One South Korean legal expert interviewed for this symposium put it bluntly: “It looks like we’re living at the end of privacy.”
From a public health perspective, in conjunction with testing and isolation, contact tracing (human and/or digital) is essential to controlling the spread of COVID-19 and, in turn, allowing countries to move beyond lockdowns and return to some normality.
Yet such movement tracing entails significant potential for abuse against political dissent, disfavored racial and ethnic minorities, LGBTI and other marginalized populations. In Norway, Langford and Sandvik ask whether trust in an app, which is still in testing phase, has a dark side.
Aeyal Gross’ report on Israel is more direct about alarming potential for such technologies to be used for security purposes unrelated to COVID-19: “Contact tracing was assigned to the General Security Services [GSS] based on their experience in detecting people considered a security threat to the state – mostly Palestinians. …[A]longside the GSS, army and the Mossad were also involved.”
As a public health measure, the effectiveness of digital methods depends upon broad adherence, suggesting the need for opt-out regimes as opposed to opt-in ones.
But converting voluntary tools into the equivalent of “e-passes” for public transport, access to schools, social services, and workplaces amplifies risks of discrimination and civil, social, and economic rights infringements, as Anand Grover notes in relation to India.
Across the globe, authors report that such digital apps are being debated in parliaments or introduced under emergency powers, but they vary widely in terms of procedural and transparency guarantees, proportionality requirements and purpose limitations, as well as clear remedies against the government and/or a private actor.
The absence of a unifying legal framework is itself a problem. Sara Gerke writes that the app being developed in Germany complies with German data protection and EU law. Jennifer Hasselgard-Rowe and Gian Luca Burci note with respect to Switzerland’s contact tracing app, “The fact that data will be encrypted, will not be stored centrally, and will be regularly deleted shows a concern for the respect of the constitutional right to privacy,” unlike one developed in the EU. The issue crosses borders, too — in Iceland, Hrefna Gunnarsdóttir raises the potential concern of testing and tracing foreign travelers. In short, this global pandemic has underscored the imperative for harmonization, not just with other privacy protections in health at a national level, but also across national and regional regimes in our inexorably interdependent world.
At the same time, neither the safety v. privacy rhetoric nor the understanding of privacy as the “right to be let alone,” applies to women and children trapped in the “shadow pandemic” of domestic violence committed behind closed doors in private homes from Dublin to Durban.
In 2017, the UN estimates that 50,000 women were killed worldwide by intimate partners or family members, and exponentially more abused. Since the pandemic started, and women and children have been locked down with their abusers, incidents have skyrocketed. Isabel Jaramillo Sierra reports that in Colombia, the number of femicides has increased from 0.47 a day to 0.75 a day during the quarantine; and Argentina has seen a ten-year high in its rate of these grisly crimes. Spain has seen an 18 percent rise in calls to hotlines, the UK 20, France 30.
Yet social and legal supports have been cut across the board. Access to courts has been reduced or closed, child-care centers and shelters shuttered or converted to health facilities. And governmental prevention and mitigation have been palliative at best. In Chile, Lidia Casas Becerra notes municipal limitations on liquor sales during lockdown. But governments and corporations have not rushed to launch or adapt apps for women to report abuse, or to do systematic outreach and provide alternative housing and economic and social support.
Societies seem to care little about whether privacy is good for women, and this pandemic has underscored that we have poor remedies in law and practice for such violence even in “normal” times.
2. Fair and accountable health systems are necessary for health rights, and key to democratic legitimacy.
A right to health, including health care, which is enshrined in law in many of the countries represented in this symposium, requires equal access to testing and treatment for COVID-19.
But as multiple authors point out, it also requires equal treatment for people with other equally serious conditions, including sexual and reproductive health needs. It also requires sustaining public health imperatives, such as childhood vaccinations, which are currently down around the world. In short, the right to health is fundamentally dependent on a fair and effective health system in terms of financing, priority-setting, and organization and delivery of goods and services, including those for public health.
The lack of a “health system” in the United States and marketization of all aspects of care has been disastrous both in terms of the ineffectiveness as well as the inequity of the response, which has laid bare underlying health disparities. A major take-away from the comparative perspective offered here is that where laws have structured universal health systems without cost barriers, they fare better not only in terms of health impacts but also in terms of the social acceptance of measures adopted in the name of public health.
For example, Spain’s use of restrictions on “property rights” to nationalize and make the health system universally accessible helped ease resistance to other emergency measures. Brigit Toebes notes in the Netherlands that critics have blamed the privatization of the Dutch health insurance system for being too efficient, leading to insufficient stocking of medical equipment necessary for the treatment of COVID-19.
Indeed, in mixed public-private schemes, democratically legitimate health systems require robust oversight and regulation, which many authors have found lacking in this crisis. For example, Grover notes failures to compel private providers to provide non-COVID care in India, despite the law. In Mexico, Sofia Charvel points to the issue of poor supply chains, which led to a lack of PPE for front-line health workers, and also undercut trust in government policy and rationales.
In France, Stéphanie Dagron writes that the current crisis, “has certainly exposed the existing weaknesses of its health system and the authorities’ capacities to halt the epidemic, as well as the negative impacts of socioeconomic inequalities on individual health.” But, she adds, “it has also pushed to the forefront the protection of health as a constitutional value.”
We can only hope her conclusion applies more broadly.