Opinion lawyer Raf Jespers
Today there is an intense debate about whether contact tracing apps are necessary. The corona crisis has indeed sharpened the privacy discussion, with the app as the central issue. But the misuse of ANPR cameras and drones in the fight against the virus is also worth debate.
The fact is that such measures are at odds with our privacy. Can privacy be set aside in the name of the just fight against this pandemic? Does the end justify the means? Or: should we be wary of sharpeners who, in their pursuit of Big Brother, use the corona crisis to push boundaries and tighten control over the population?
Should we beware of sharpeners who, in their pursuit of Big Brother, use the corona crisis to push boundaries and tighten control on the population?Raf Jespers
I want to give a sober legal answer to that, because the discussion is conducted rather quickly in a Twitter-like manner and with little attention to fundamental rights, and therefore on quicksand.
The discussion, reduced to its core, is very clear. The legal basis for guaranteeing privacy in the European world is the famous Article 8 of the European Convention on Human Rights (ECHR). This article guarantees that the government must respect the private life of citizens; for that reason it is also called the ‘right of defense’. The rule is that the government should not interfere in private life. This is not an absolute prohibition; exceptions are possible. And that’s exactly what it’s about.
According to that Article 8, there are clear conditions for committing such infringements. In the first instance, the derogation must be made by law. It is a legally open question whether this is possible by means of a power of attorney decision.
Second, it must be necessary in a democratic society for the protection of health. The question is: are measures such as that app necessary in a Western country such as Belgium to tackle the corona crisis?
The question is therefore not whether such a measure can be useful or whether it is technically possible. This question of necessity requires a serious discussion between the virologists, government and parliament, and by extension with privacy experts and citizens. The question is how far we want to go to be able to speak of a democracy. Comparisons with countries such as South Korea, China or Singapore, which go to great lengths to control citizens, are not valid. These countries have a different historical interpretation of human rights and ‘trust in government’ than the West.
A person is not an egg
When it is accepted that a measure such as the contact tracing app is necessary, two further questions arise before introducing the measure.
Question one: is that measure not disproportionate? An app is a far-reaching measure, certainly when it is applied across the entire territory and without distinction between citizens. A mandatory app also goes much further than a voluntary one. An app that is limited in time until the corona crisis has been averted is also less drastic.
Virtually none of the measures taken after 9/11 that were at odds with privacy were later removedRaf Jespers
There are legitimate concerns that measures will not be scaled back once introduced. Virtually none of the measures taken after 9/11 that were at odds with privacy were subsequently removed. In Terzake, Minister of the Interior Pieter De Crem (CD&V) referred to the dioxin crisis when asked ‘what after the corona crisis’: ‘After that, every egg was checked’. But a person is not an egg.
Question two: are there not less drastic measures possible, the so-called principle of subsidiarity, to achieve the same result – preventing the spread of the virus? For example: can the appeal to civic sense and an obligation to inform friends and acquaintances in the event of contamination and to remain in quarantine not be a sufficient measure? Contact tracing via the bluetooth antenna seems to me to be a compromise to be discussed in that context.
Why have the debate on that legal basis? The ECHR is not a scrap of paper. In 1950, it was the European human rights response to the horrific violations of the 1930s and World War II. Although certain political forces are today questioning fundamental human rights, especially in crisis situations, they must remain not only the beacon but also the foundation for the actions of governments, companies and citizens.
The concern that a ‘big brother’ app is becoming a dangerous toy for authoritarian sharpeners is justifiedRaf Jespers
The debate about our privacy in times of corona is not separate from the question of where it will evolve in the 21st century with that fundamental right and, more generally, with democratic society. ICT enables generalized control of the population. And not just of criminals or political opponents. Crisis moments such as 9/11 and the banking crisis of 2008 have already pushed boundaries in this area. The concern that a ‘big brother’ app is becoming a dangerous toy for authoritarian sharpeners is justified.
Lawyers and privacy associations have been waging a little-mediated fight for years to protect the private life of all citizens.
For example, in a few weeks, the Court of Justice of the European Union, at the request of the Belgian Leagues for Human Rights, will rule on the question whether or not the Belgian data retention law (retention of all communication data of all citizens via telephone or internet) is in conflict. is with that Article 8 ECHR. It is an important test case in light of the corona privacy debate. Wait and see.
Lawyer Raf Jespers
This article appeared on Apache.be