The Legal Journal covers the most significant legal news in the UK
In the name of combating the spread of COVID-19, the UK government has extended its emergency powers with the introduction of the Coronavirus Act 2020. Through this it has been able to clamp down on civil liberties and human rights.
Proposed next steps involve enhanced mass surveillance. Already this week, the government was given the go-ahead to use citizen’s mobile data to help track and contain the spread of the virus.
Back in March, Mayor of London Sadiq Khan said that in order to protect health: “Our liberties and human rights need to be changed, curtailed, infringed, use whatever word you want”. And, unfortunately recent weeks have seen this enacted.
However, many civil liberties groups have warned against these infringements. They argue that this pervasive surveillance of citizens sets a dangerous precedent, fearing the new measurements may become permanent fixtures.
So, how concerned should citizens be about these ‘draconian powers’? And what will come out on top in the battle of public safety versus public privacy?
Harnessing the power of data to navigate the crisis, the Information Commissioner’s Office (ICO) an independent privacy watchdog, has granted the UK government permission to leverage the public’s data.
Now, under the Section 22 of Act, temporary Judicial Commissioners can oversee surveillance. On top of this, the Investigatory Powers Act 2016 otherwise known as the Snoopers Charter can continue unrestricted. The Act also permits intelligence agencies to request warrants to access bulk data and conduct surveillance of citizens.
Meanwhile, the NHS has enlisted the help of a range of US technology services to help develop data tracking technology. This includes the controversial CIA-funded data-analytics company Palantir. NHSX intends to use this technology to track NHS staff and supplies.
Speaking about the data hub, NHSX said: “Sophisticated data analysis will allow us to make changes to the NHS, ensuring that our hardworking health and care professionals and the people that depend on them are served by a much more efficient and responsive organisation”.
The NHS are also planning on developing a contact tracing app. This will enable them to identify individuals who have come into contact with someone infected with COVID-19.
In addition to the Act, the government is currently in talks with UK telecommunications operators BT and O2 concerning the possible use of smartphone location data to determine if citizens are abiding lockdown measurements.
Many civil liberties groups and lawyers specialising in human rights have said the new surveillance powers are in direct violation of citizen’s rights. Civil liberties group Big Brother Watch has subsequently called the measures: “Unprecedented, unexplained and simply unjustified”.
The government’s own Summary of Impact statement even notes that the new measures may interfere with Article 8 of the European Convention of Human Rights.
This was raised as an issue back in March when SkyNews reported that O2 was working with the government in an effort to gather and analyse location data to identify people’s movements. A spokesperson for the mobile network later refuted this, saying that it would only be able to provide general information rather than individual data.
However, according to Toni Vitale, Partner and Head of Data Protection at JMW Solicitors, the legality of collecting data, even anonymised data, all depends on how it is used. And, without full transparency from the government, many are worried about the potentially nefarious use of this data.
Perhaps what is most concerning about these ‘temporary’ measures is that they may outlive the Coronavirus pandemic. Amnesty, for example, have pointed to examples in recent history, where threat to public safety in the form of the 9/11 attacks saw government surveillance ‘expanded significantly’.
Subsequently, there is a very real possibility that this kind of mass surveillance will persist long after the virus is contained. Especially if the public believe that mass surveillance will facilitate the prevention of another breakout, and guarantee the resurgence of ‘ordinary life’. Speaking about the potential continuation of these powers Glenn Cohen, a Professor of Health Law Policy and Bioethics at Harvard University said: “We tend to accept what we live in as far as what privacy is, and once we’re there, the status quo has a lot of power over us”.
Undoubtedly the Act implements measures that are far more draconian than anything this country has seen in decades. Speaking about the changes in surveillance, Edin Omanovic, Advocacy Director of Privacy International said: “The wave of surveillance we’re seeing is truly unprecedented, even surpassing how governments across the world responded to 9/11”.
Subsequently many have been left wondering whether this bio-surveillance is worth the erosion of their right to privacy, and the violation of data protection laws.
Speaking about the potential retrieval of location data by the government, Matthew Rice, Scotland Director at Open Rights Group said any use of surveillance must be measured and appropriate: “Large scale collection of everyone’s location all the time using surveillance powers is not the right way forward on this. It risks undermining the public trust, and right now that is the most vital currency the UK Government needs to protect”.
The questions that remain are, how far is too far, and are these changes justifiable? Speaking to EuroNews, Samuel Woodhams, Digital Rights Expert at internet research firm TOP10VPN said: “That is the really difficult thing here – whether these measures are proportionate and necessary at the moment. I think a lot of them are, but I think the major concern is that if they hang about for any longer than they’re absolutely necessary then there could be serious repercussions for liberties and human rights”.
Another salient question, is can this surveillance be done responsibly? Many have said that the only way this kind of surveillance should be permitted is through it being driven only by public health professionals and experts, for purposes specifically related to containing the virus.
Electronic Frontier Foundation attorney Adam Schwartz, speaking to Interceptor added that it is also essential that the government can prove that the surveillance technology will effectively tackle the virus. “The threshold question is: has the government shown its proposed surveillance tool would effectively and significantly address the crisis?” He said, adding that if it does not it should be opposed. Alternatively, he went on to say: “If so, we ask: does the benefit of the surveillance outweigh its costs to privacy, speech, and equal opportunity?” Again, if it is not found to outweigh this, he determined it should be opposed.
Finally, to prevent these new measures from becoming wound into the fabric of society, strict time limits must be enforced. In a joint letter, Big Brother Watch, and other civil liberties groups appealed to parliament before the bill was passed: “Utmost caution, closest scrutiny and the strictest time limitations,” should be applied. However, with the Act now law, what is abundantly clear is “Two years is too long”.
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