Can a virus undermine human rights?

Abstract

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.1Harari YN The world after coronavirus. Financial Times, March 20, 2020https://www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75Date accessed: March 25, 2020Google Scholar 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.2Alford R Permanent state of emergency: unchecked executive power and the demise of the rule of law. McGill-Queen's University Press, Montreal2017Google Scholar 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.3Klein N The shock doctrine: the rise of disaster capitalism. Knopf Canada, Toronto2007Google Scholar Many governments could take advantage of tracking technologies, artificial intelligence, and robotics to expand invasive surveillance.4Kubler K State of urgency: surveillance, power, and algorithms in France's state of emergency.Big Data Soc. 2017; 4: 1-10Crossref Scopus (7) Google Scholar 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 su