I would like to help today and donate

Next
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Next
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
Thank you! Your submission has been received!
Oops! Something went wrong while submitting the form.
CLOSE
NEWS

COVID-19 Surveillance: Guide for lawyers

FairTrialsAdmin - August 12, 2020 - COVID-19 Updates, Guides, Surveillance

 

COVID-19 is a danger to public health and wellbeing on a widespread scale. States around the world have taken action, unprecedented in peace-time, in order to combat the spread of the virus. Many have swiftly implemented various means of tracking people’s movements, ostensibly to trace the spread of infection. However, these methods are also being used to monitor whether people are complying with movement restrictions or ‘lockdowns’ imposed to slow the spread of the virus.

While a co-ordinated and large-scale public health response is certainly the correct response to this worldwide health crisis, there are concerns that the current crisis may be used to implement invasive digital surveillance regimes. The contact-tracing and location data-sharing and monitoring schemes which have been rapidly implemented around the world do not, in many cases, have clear time limits on their use and they lack transparency over their full operational capabilities. There is also the potential that the data-collection and sharing measures may continue after COVID-19 ceases to be a significant threat to public health. In the rush to implement these technological responses to COVID-19, measures have been taken without clear safeguards or restrictions, such as effectively limiting which parties, beyond public health authorities, have access to the data, or the purposes for which that data may be used. Where states have opted to enforce COVID-19 related health measures through criminalisation and increased law enforcement powers, there is a real possibility that the vast amounts of sensitive and personal contact and location data currently being collected and monitored may be used to enforce COVID-19 related offences in criminal proceedings; and potentially more broadly for other types of criminal proceedings. There is an additional risk that these ‘emergency’ powers and practices brought in to combat COVID-19 may be retained even after it is no longer a significant threat. 

The increase in surveillance, which is often opaque and without safeguards against abuse, threatens not just privacy and civil liberties, but also the fairness of criminal justice proceedings, with potentially severe consequences for the right to a fair trial. The lack of independent oversight on the use of these new – and existing – surveillance regimes is an affront to due process and fairness in the justice system. In addition, the lack of specific safeguards, in particular the fact that people are generally not notified that their personal location data or communications are being monitored or tracked (an established, but not as yet widely codified human rights principle), inhibits individual challenges to any such surveillance regime, creating an accountability vacuum. This can prevent persons affected by these regimes from accessing a legal remedy against any abuse of such powers.

The aim and structure of this guide

This guide is intended to support criminal defence practitioners in challenges to the collection and use of contact-tracing and location data in criminal proceedings, and when seeking appropriate remedies in the event of unlawful collection. It outlines the different ways in which European countries are developing, implementing or otherwise using contact-tracing and location tracking schemes as part of their responses to COVID-19. The guide analyses the legal considerations around the collection of data by these schemes and how data protection law can assist in finding out more. It outlines relevant EU law which can be used to obtain disclosure of the use of such information in criminal proceedings, as well as the jurisprudence of the European Court of Human Rights on potential remedies for breaches of the right to a fair trial and the right to privacy. There is a list of further resources related to all of the issues covered at the end of this guide.

See the guide here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

Keep up to date

Receive updates on our work and news about Fair Trials globally

Activities in the following sections on this website are supported by the Justice Programme of the European Union: Legal Experts Advisory Panel, Defence Rights Map, Case Law Database, Advice Guides and Latest News. More information about our financial supporters is available here.