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Commentary: Coronavirus, surveillance and the threat to fair trials

FairTrialsAdmin - May 11, 2020 - COVID-19 Updates, Commentary, Surveillance, Rule of Law

 

Coronavirus is a danger to people’s health and wellbeing on a widespread scale, and states around the world have taken action unprecedented in peace-time in order to combat the spread of the virus. However, while a co-ordinated and large-scale public health response is certainly the correct response to this worldwide pandemic, there are very real concerns that the crisis may be used as a cover to implement invasive and authoritarian digital surveillance regimes.

The increase in surveillance, often opaque and without safeguards against abuse threatens not just privacy and civil liberties, but also the fairness of criminal justice proceedings. These measures, implemented around the world, have potentially severe consequences for the right to a fair trial.

Opaque, unlimited and unaccountable surveillance

A common theme among worldwide responses has been the swift implementation of various means of tracking people’s movements. Ostensibly this is to trace the spread of known infections, but it is also being used to monitor whether people are complying with movement restrictions or lockdowns imposed to slow the spread of the virus – and potentially more, including the prosecution of new criminal offences related to the pandemic.

Some states have turned to ‘contact-tracing’ mobile phone apps. While these have a legitimate primary function, by their nature they generally collect huge amounts of sensitive and personal location data on people’s movements. China was the first country to ‘request’ that its citizens download an app to monitor their movement, and it has been reported that the app sends location and personal information to police.

Other countries have also created or are in the process of creating differing versions of contact-tracing apps, including Hong Kong, Australia, and India, as well as many European countries including Italy, Spain, Germany, France, Romania, Denmark, Slovakia, and Poland.[1] Competing initiatives in Europe are developing a Bluetooth-enabled contact-tracing app which only records which devices come into close proximity with each other. The French app model openly acknowledges that the supposedly anonymous app data collected could be used to “re-identify users or to infer their contact graphs”, while it has also been argued that even a de-centralised model, where contact data is stored on individual devices rather than in a central database, can lead to users being de-anonymised.

Several countries have also been monitoring people’s movements using mobile phone data from telecommunications providers. US officials are analysing GPS data from millions of people’s mobile phones, Mexican telecommunications companies have granted the government access to cell phone towers, and Kenya is tracking the mobile phones of people suspected of being infected. In Europe, Bulgaria and Slovakia have passed legislation giving the government access to the specific location data from the mobile phones of those quarantined. The Bulgarian emergency laws amended existing regulations to allow police and government accelerated access to mobile phone data, without prior notification or judicial authorisation.

The UK government also held talks with mobile phone operators O2 and EE over the use of mobile phone data – and the government specifically considered using the proposed contact-tracing app to identify and track people. The UK’s National Health Service has also partnered with Google and Amazon, as well as the technology firm Palantir, which provides digital surveillance architecture and predictive analytics software to US law enforcement, immigration enforcement and the National Security Agency.

States have sought to reassure people by emphasising the ‘anonymous’ nature of the location data they are collecting, despite the fact that it has been proven that in many cases such data can be ‘de-anonymised’ by combining it with public and private records. Telecommunications providers in Germany, Italy, Austria, Belgium and Norway have also shared mobile phone location data with their respective governments to track people’s movements under lockdown restrictions, although they have insisted that this is only aggregated location data.

Meanwhile, other countries have turned to already existing surveillance infrastructure. In Moscow, the pre-existing network of over 100,000 facial recognition cameras are being used to track whether people are following self-isolation.

In at least three US states, prisoners’ phone calls are being monitored for mentions of coronavirus, in an intrusive, unnecessary and abusive surveillance response to the rapid and dangerous spread of the virus in prisons. The direct monitoring of prisoners’ calls, at a time when there are limited visits and phone calls can be the only way to get legal advice during what is a dangerous and deeply distressing time for them, almost certainly infringes legal professional privilege and prejudices their fair trial rights.

Some countries, particularly the US and the UK, actually have no need to implement new digital surveillance measures in response to coronavirus, as such intrusive measures and frameworks already exist in statute. In both countries, bulk communications data interception, internet history collection, and long term retention of that information is set down in law. Yet the UK still sought to loosen the safeguards on its surveillance regime through the Coronavirus Act, allowing the appointment of independent judicial commissioners which oversee warrants, as well as extending the time limit for consideration of those warrants. This weakens the already frail oversight on the UK’s surveillance regime, potentially allowing for unjust monitoring throughout the period the law is in place – potentially far beyond the end of the coronavirus crisis.

The consequences for fair trials

The extensive surveillance and monitoring schemes which have been rapidly implemented around world pose a real danger to the rule of law and the fairness of criminal proceedings.

These new and extended surveillance and location-tracking measures lack transparency over their full operational capabilities and clear time limits on their use, and there is the potential for this data collection to continue far beyond the end of coronavirus as a significant threat to public health. If there is not clear restrictions on the use of this information – such as who beyond public health authorities has access to the data, or what the information collected may be used for – there is nothing to stop this information being used for other purposes, such as by law enforcement, or in criminal proceedings.

Mobile phone location data has long been used in criminal investigations and prosecutions. In the US, for example, Google often provides location data for “dozens or hundreds of devices” in response to police warrants for location data. Investigators trawl location data records just to see who was in the vicinity when a crime was committed, and unsurprisingly, this random method has led to innocent people being wrongly arrested, or labelled as criminals. In Europe, communications data is also used widely in criminal proceedings.

People are generally not notified by authorities that their personal location data or communications are being monitored or tracked – an established, but not as yet widely codified human rights principle – inhibiting challenges to surveillance regimes, creating an accountability vacuum. This prevents individuals from accessing a legal remedy against any abuse of such powers, which in the context of its use in criminal proceedings, is extremely concerning. The lack of independent oversight on the use of these new – and existing surveillance – regimes is also an affront to due process and fairness in the justice system.

The use of such information in criminal proceedings also holds the potential for serious miscarriages of justice. In Denmark in late 2019, over 10,000 convictions using or linked to mobile phone geolocation data were subject to review, several ongoing cases were put on hold and 32 prisoners were released after the reliability of the data and its interpretation was brought into question. “We should remember: data is created to help deliver telecom services, not to control citizens or for surveillance”, a Danish telecoms industry representative said at the time.

Worryingly, the technology used by the mobile apps developed or in development specifically for coronavirus contact-tracing also raise questions over accuracy. GPS data is accurate to within 5 metres - which can be the difference between someone being at home or in the street, or in another house next door – and doesn’t work indoors; mobile network data is only accurate to 0.1km² in city centres, and even less accurate in more sparsely populated areas; while the more privacy-protective (but still potentially traceable) Bluetooth version has a range of 10 – 30m, with any devices within that range potentially being picked up.

There is an additional risk that these ‘emergency’ powers and practices brought in to combat coronavirus may be retained even after coronavirus is no longer a significant threat, as has been the case throughout history: from World War II ‘emergency’ powers remaining in place long after the war ended, to the extensive counter-terrorism laws and surveillance adopted by the West after 9/11, the majority of which are still in force.

Safeguards to protect the right to a fair trial

Where states have hurriedly implemented widespread surveillance, without transparency, effective safeguards and remedies, and this information is or may be used in criminal investigations or proceedings, the fairness of the criminal justice system is called into question.

States implementing or extending surveillance measures to deal with coronavirus must implement the following safeguards to protect fairness in the justice system:

  1. Any new or extended surveillance powers must be strictly necessary and proportionate on a public health basis.
     
  2. Data collected as part of public health responses to coronavirus must be clearly and strictly purpose limited, accessible only to public health authorities for such purposes, and should not be used for criminal proceedings. This should be subject to independent oversight and review.
     
  3. States must be completely transparent about such surveillance and data collection measures, including notifying people whose data has been monitored, collected or intercepted. Individuals must also have access to an effective legal remedy to challenge this.
     
  4. Any surveillance measures brought in or used in relation to coronavirus must be subject to strict time limits, and the operation of those powers must be kept under regular review to justify their necessity and proportionality.

 

[1] https://www.bbc.co.uk/news/technology-52325352

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