Can a Virus Undermine Human Rights?

HUMAN RIGHTS, 27 Apr 2020

Olivier Nay | The Lancet – TRANSCEND Media Service

20 Apr 2020 – Exceptional situations require exceptional measures. Faced with the magnitude of the health risks caused by the coronavirus disease 2019 (COVID-19) pandemic, national governments have had to quickly decide whether or not to declare a state of emergency to curb the spread of the disease.

Where a health threat constitutes a danger for the whole population, then the suspension of ordinary law is legitimate to increase the government’s capacity to protect society. A state of necessity justifies the state of emergency. This state provides a legal framework for the limitation of individual freedom during a short period of time, such as the freedom of movement, freedom of assembly, and entrepreneurial freedom. This state enables governments to requisition goods and services, to shut down public or private facilities, and to take binding measures that would normally be seen as infringements of basic rights. Health security becomes a matter of public security.

Exceptional situations require exceptional means. Faced with an imminent threat, governments do not hesitate to use the latest mass surveillance technologies.(1) China is making use of drones, facial recognition cameras, and Quick Response code technology to monitor the whereabouts of its citizens. South Korea, Singapore, and Israel are extracting Global Positioning System data from mobile phone networks, credit card information, and video images to monitor the outbreak. These countries exercise an intrusive biopolitics where everybody can be watched, screened, and monitored in their every movement. Although such observation from a distance is effective in containing COVID-19, there is little knowledge on how these data will be stored over the long term and how tempting it will be for governments to maintain increased amounts of surveillance in the aftermath of the pandemic.

Can exceptionality jeopardise some democratic principles in the long term? Could the epidemic lead to a reduction of individual rights after the peak of the crisis?

The first risk is that some exceptional measures adopted in the context of an emergency might eventually fall within the scope of ordinary legislation, if leaders argue that a widespread health threat could resurface at any time. In the USA, the Patriot Act has infringed on civil liberties in the long run by allowing security agencies to spy on every American without due process. In France, after the 2015 Paris terrorist attacks, an anti-terrorism law reduced civil liberties by curtailing judicial oversight of security tools. Many intellectuals argue that such normalisation of emergency measures has become a trend in democracies.(2)

The second risk is that governments might take advantage of the substantial effect of this crisis to administer a so-called shock strategy, aimed at strengthening surveillance politics. As Naomi Klein has pointed out, this strategy consists of a government seizing the opportunity of a national trauma—eg, a war, a terrorist attack, a natural disaster—to make radical reforms that would have been considered unacceptable beforehand.(3) Many governments could take advantage of tracking technologies, artificial intelligence, and robotics to expand invasive surveillance.(4) Governments will most likely seek to watch over the intimate life of the public, to predict and monitor their behaviours and movements. These practices could morph into the panoptic surveillance of the lives of citizens.(5)

The third risk is that fear could change the value citizens accord to freedom. As global biological and environmental threats increase, citizens might be disposed to give up some of their constitutional rights. The aspiration to security can quickly erode the desire for freedom. This aspiration can lead to individuals preferring the authority of a leader to the ethics of democratic discussion. Citizens might even call for the soft security of smart technologies and algorithmic governance.(6)

In health, tracking technologies are effective in improving health research, anticipating health threats, and mitigating individual at-risk behaviors.(7) This effectiveness is why governments will be tempted to bring mass surveillance into ordinary laws. The evolution is underway: many national health regulators, research centres, and health-care providers around the world already make use of personal data.(8) On one hand, health tracking systems are valued for their exceptional benefits in terms of disease prevention, therapeutic follow-ups of patients, and epidemiological monitoring. On the other hand, no one can ignore the risk that the bulk collection of data can transform the surveillance of health issues into the surveillance of individuals, with a whole range of possible information on lifestyles, personal choices, and territorial, social, and minority affiliations. In authoritarian countries, such a situation can lead to the stigmatisation of social minorities. There is no reason to consider liberal democracies immune to this risk.(9)

Is there any reason to remain optimistic? Major crises that cause societal shocks can ultimately provoke positive ways of reconsidering the common good and fundamental rights. The participation of women in the war effort between 1914 and 1918, for example, led to the extension of the right to vote to women in many countries. The end of World War 2 provided an opportunity for European countries to rethink the social contract around inclusive health protection systems. All things considered, it is the appropriate time now, as humanity is facing the crisis, to start thinking about the post-COVID-19 reconstruction. In this debate, fundamental rights should not be sidestepped, especially in countries with weak privacy and data protection policies.

How can humans think about health crisis management systems that protect society without undermining individual freedom? National legislatures should adopt adequate rules to ensure that health surveillance and monitoring policies will be strictly prescribed by law, proportionate to public health necessities, done in a transparent manner, controlled by independent regulation authorities, subject to constant ethical reflection, non-discriminatory, and respectful of fundamental rights.

I declare no competing interests.

NOTES:

  1. Harari YN. The world after coronavirus. March 20, 2020. https://www. ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75. Financial Times. (accessed March 25, 2020).
  2. Alford R. Permanent state of emergency: unchecked executive power and the demise of the rule of law. Montreal: McGill-Queen’s University Press, 2017.
  3. Klein N. The shock doctrine: the rise of disaster capitalism. Toronto: Knopf Canada, 2007.
  4. Kubler K. State of urgency: surveillance, power, and algorithms in France’s state of emergency. Big Data Soc 2017; 4: 1–10.
  5. Stahl T. Indiscriminate mass surveillance and the public sphere. Ethics Inf Technol 2016; 18: 33–39.
  6. Lupton D. The quantified self: a sociology of self-tracking. Cambridge: Polity Press, 2016.
  7. Greenhalgh T. Patient and public involvement in chronic illness: beyond the expert patient. BMJ 2009; 338:
  8. Ancker JS, Witteman HO, Hafeez B, Provencher T, Van de Graaf M, Wei E. The invisible work of personal health information management among people with multiple chronic conditions: qualitative interview study among patients and providers. J Med Internet Res 2015; 17:
  9. Snell K. Health as the moral principle of post-genomic society: data-driven arguments against privacy and autonomy. Camb Q Healthc Ethics 2019; 28: 201–14.

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This is an Open Access article under the CC BY 4.0 license.

Olivier Nay- onay@univ-paris1.frUniversity of Paris 1 Pantheon-Sorbonne

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One Response to “Can a Virus Undermine Human Rights?”

  1. With all respect for Professor Olivier Nay, I have to confess I don’t much understand his message, as for me, Human Rights have been abused for 70 years NON-STOP, or, without a break, by the same Governments who signed the declaration.

    To start with, the United Nations Universal Declaration of Human Rights states that “All people have the Right to Life”, but governments are the first to sponsor the death of millions, by spending fortunes they don’t have and which destroys their economy, by organizing and eternally keeping Armed Forces, where they teach young men – and now young women also – to kill and then send them on killing rampages, whenever they manage to negotiate a war.

    Even after the United Nations Charter for Peace was signed by UN member countries, stating ALL military attack on a foreign country are ILLEGAL, governments agree (privately) to disagree (publicly) so that they have opportunities to play War Games and kill people. More flagrant and immoral abuse of Human Rights I cannot imagine.

    The UN Universal Declaration of Human Rights declares All human beings have the “Right to Education” but do nothing about the millions who don’t have access to a school. Another article states that “All people have the Right to a home and not only do United Nations members countries allow millions of people to remain homeless, but create many more victims of homelessness by producing wars as often as they can (they have to keep good relations with the military industry).

    These uprooted people are known as ‘Refugees”, which brings me to yet another article of the Universal Declaration of Human Rights, the Right to “live in the country of your choice”. We all read or hear about the drama, tragedy, suffering and horror that being forced to become a refugee entails.

    Not being able to go out and meet friends and loved ones, not going to the cinema, theatre, concerts, restaurants, etc, is a very mild price to pay, compared to what I described above. In fact, I’m elated by the idea that for ONCE, politicians think about our well-being. Up to now, they’ve been far more interested in spending trillions of dollars or euros every year, to kill us. The average price of an air-fighter is about 40 million dollars. A Scud B missile costs 1 million dollars and a Scud C missile is 3 million dollars a piece.

    But politicians couldn’t find the money top build homes for the homeless, hospitals for the sick, schools for the illiterate. Traditionally, governments spend on scientists dedicated to military research ten times more than they spend on medical research. That is, they spend more money on finding more sophisticated ways of kill us than money to help us live healthier and longer lives.

    Because of Covid-19, politicians’ priorities seem to have changed. We should welcome the change !!!!!

    Alberto Portugheis
    President HUFUD

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