Surveillance vs privacy

Clive QC asks Elliott whether we can harness technology in the fight against Covid-19 without undermining democratic values

Emmanuel Macron has described the battle against Covid-19 as “a war against an invisible enemy”. He is right. How do we fight this invisible adversary and to what extent do we have to abandon long-standing democratic values to do so?

The Covid-19 pandemic has become a battleground over whether state surveillance or privacy should take precedence and whether a workable balance between these two competing priorities is even possible.

Two new terms have found their way into our lockdown lexicon: “social distancing” and “contact tracing”. Social distancing is not a new concept. It has been used in previous pandemics, including the Spanish Flu epidemic over a century ago. With the present pandemic, social distancing has been implemented in a variety of ways, with mixed results.

According to the WHO, contact tracing, also referred to as proximity tracing, involves identifying a contact, listing the contact and then following up on it.

Typically, the follow-up stage is undertaken by a physical visit or “house call” from a health official or the police. The process is slow, laborious, and expensive.

As with social distancing, contact tracing has had mixed results. Further, by conducting face-to-face visits officials, some of whom have not had adequate personal protective equipment (PPE), have had to expose themselves to the risk of infection.

Governments quickly worked out that there is a better way to do contact tracing. It can be done through location tracking and other technical solutions including using cell phone tower data and Global Positioning System (GPS) signals. However, for non-military uses, GPS is only accurate to a 4.8-metre radius. With the Covid-19 contamination range estimated to be about 2m, more precise tracking was needed.

In contact tracing terms there are three broad levels:

Level I — Aggregated community level data

At a macro level the authorities are able to map how people in a particular area or community are behaving and where they are going. Because the data is gathered at a high level and aggregated it contains little personal data about individuals. In a pandemic situation this type of data would be able to identify whether people are staying at home or not and whether they are congregating.

Level II — Anonymous individuallevel data

This information is far more specific. However, because it is anonymous, individual privacy is maintained. This means that people who might have been in contact with someone infected with the virus will be notified but without knowing exactly who infected them.

Level III — Individualised data

This means an individual is identified and his or her movements known. This allows authorities to monitor that individual and enforce quarantine regulations.

Invasive state surveillance

Governments realised that more sophisticated surveillance technology needed to be developed. Countries such as China and India have led the way in developing this technology. China has long used surveillance, including an extensive network of CCTV cameras, facial recognition software and big data to monitor its citizens. It quickly repurposed this technology when the pandemic emerged in Wuhan in 2019, deploying well tested, highly effective but intrusive surveillance and intervention techniques.

China has relied on traditional social distancing techniques to some extent, but its solution is primarily technology driven. It is aimed at not just contact tracing but compliance monitoring and quarantine enforcement.

All Chinese citizens are required to carry a compulsory ID card. It has their personal details, including an 18-digit citizen identity number and their hometown address. The Government uses phone location data. Geolocation pings are sent out, identifying exactly where a person has been — that is, having actual or potential contact with someone infected with Covid-19, for a twoweek period.

Using a mixture of big data and human analysis the authorities work out who is likely to be infected. People in the risk zone are alerted. Reports have emerged of CCTV cameras positioned outside apartment doors of those under quarantine. Drones also circle about warning citizens to not congregate and to keep their masks on.

Today, in China’s urban areas, most people have some sort of smartphone. If they do, the smartphone must display a coloured QR digital barcode. This comprises a three-coloured risk profile — green (uninfected) orange (potentially infected) and red (infected). Enforcement teams made up of police and volunteers apprehend citizens not complying with the rules.

China’s massive surveillance network consists of both visible and invisible elements, which have enabled the state to monitor people’s movements and tackle the Covid-19 crisis very effectively, but at the expense of individuals’ privacy. For example, in Hong Kong, some residents were required to wear a wristband (similar to the GPS leg bands used by the Department of Corrections in New Zealand) which sync to an app on their smartphone, and alert authorities if they move