Crises, Creep, and the Surveillance State

Abstract

COVID-19 started in December 2019 in China and spread rapidly and globally. This virus led to a public health emergency of international concern as a threat to the public’s health and safety. The speed of virus infections depended on various aspects of individual’s social network position. Individuals with more friends, or those who were more central in the network, caught the virus sooner. In the beginning of the outbreak, governments thought that tracking human networks and collecting information on the movements of individuals would allow governments to utilize the information for mitigating the spread of the virus. They believed that mass surveillance would help health authorities identify the contacts an infected person had, and warn such contacts, thus reducing the likelihood for them to infect others. By gaining such data, governments believed they could focus their efforts to block the spread of the virus and even predict where the next cluster of infections would emerge.

In general, information and data-driven models have the potential to promote health. Data is knowledge; however, knowledge is power that can grant governments control over citizens, leading to a slippery slope that could creep beyond health considerations and undermine the infrastructure of civil rights. The result could be constant surveillance instead of privacy, self-censorship instead of freedom of expression, suspicion instead of trust, and the rise of the surveillance state instead of democracy.

This Article outlines a taxonomy of surveillance data-driven practices that were used to combat the virus. It describes the potential benefits of such models while addressing the dangers created by such mass surveillance. Additionally, this Article demonstrates that surveillance practices can compromise privacy, infringe on free expression and equality without safeguards or due process, and lead to abuse of power. Finally, it establishes how such practices can erode democracy and creep beyond combating a virus.

This Article argues that even in times of crisis, we can have both health and human rights. It warns against surveillance creep and advocates for a privacy by design approach in such models, including anonymization of personal information. This Article further proposes safeguards including transparency, impact assessments of data protections and algorithms, fiduciary duties, oversight, and due process. Finally, this Article addresses practices of long-term invasive surveillance that should be ruled out altogether and rejected at all costs. COVID-19 is a test case that demonstrates the consequences of mass surveillance without warrants or adequate regulatory prerequisites, and the misuse of personal data. Thus, this Article warns that the creep of mass surveillance can lead to the rise of the surveillance state.

Keywords: Aviva Lavi, covid-19, civil rights and liberties, public health, algorithmic impact assesment, gdpr, impact assesment, data protection, oversight, due process, transparancy, privacy by design, technology, contact tracing, artificial intelligent, risk scoring,networks, fourth amendment,first Amendmet