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10 April 2020

Mass coronavirus testing and tracing poses challenges for individual rights

Charles Clarke

CHARLES CLARKE: Better legal protections are needed to keep our data safe


Through this coronavirus catastrophe we have all become familiar with “herd immunity”, a phrase which illustrates as clearly as any could the interdependence of the individual and society, the citizen and the state.


Governments around the world have followed various different strategies, usually trying to follow scientific advice, in their attempts to defeat the deep threat of Covid-19. These include “social distancing” and “lockdowns”, which have involved closing places where people meet, giving police enhanced powers to disperse gatherings, and requiring people to wear facemasks.


Apps such as TraceTogether in Singapore are used to locate people who have come into contact with those infected by the virus and to police their movements, as well as using credit card data, CCTV and taxi numberplates. Arrivals in Hong Kong may be tied to tracking wristbands, paired with the StayHomeSafe app, to ensure that they maintain their mandatory home quarantine. Chinese people may be required to carry an app that classifies them green, amber or red, indicating their risk as virus carriers.


In some months there will be enormous and detailed analysis of the success and failure of these various techniques. However, there is little doubt that in some countries such approaches have reduced infections and saved lives. And there will be no way forward without strategies involving both mass testing and tracing.


These assessments will inform consideration of the best relationship between the individual and wider society in these modern times and circumstances. They will probably also provoke legal change.


Of course, there is nothing at all new in this debate between the security of society and the freedoms of individuals within it. All human societies have addressed this at some level. However, in recent decades very rapid scientific and technological change – for example, with DNA, CCTV and facial recognition – has made the dilemmas more acute. The technological approaches used to combat Covid-19 take that debate significantly further.


And it’s not just about government or state use of these methods. Similar issues arise in the private sector. Financial institutions and health organisations require their customers to use identification processes of various kinds. Media organisations have used such data intrusively (and sometimes illegally) to pursue their news agendas, often with no reference to the public interest. Retailers possess sophisticated processes of analysing our shopping habits for their marketing purposes. Big technology companies like Google, Apple and Facebook develop their businesses by exploiting their capacity in this field, often taking no account of wider social consequences. And of course targeted data of this type has driven election strategies in the major democracies.


Russia and China have used the integration of identity data throughout our modern societies to pursue their own national interests, possibly at the expense of our own. The Huawei 5G controversy and Russian interference in US elections are just the tip of this iceberg.


So the coronavirus policy dilemmas bring little in principle that is really new to this debate, but the pandemic really does highlight and focus the policy challenges. The scale of the Covid-19 pain may well change the balance of public debate on these issues by raising to a much higher level the demand that rash individual behaviour should not inhibit our ability to protect the whole community.


The dramatic and universal nature of the coronavirus experience means that these issues will have to be addressed seriously and coherently. They can only be resolved by establishing a new and clear legal relationship between the individual and society. This has to take account both of modern technological realities and the potential threats to wider society.


Governments and policymakers face three alternatives.


The first is to try and roll back these technological and scientific changes which now permeate so much of our societies in both the public and private sectors. That ambition underlies the arguments and emotions of many of the civil libertarians, who worry greatly about the negative consequences of mass data collection and use.


These attitudes are rooted in the often-used metaphor of Big Brother, powerful as it is because it recalls the shadow of totalitarianism, both fascist and Stalinist, and is rooted in a profound narrative of the contest between the individual and the state and between good and evil. This was, of course, the very contemporary reality for George Orwell, Aldous Huxley, CS Lewis and Tolkien, whose writings (and even their modern sequel, Harry Potter) still resonate today.


But the truth is that these databases are now all deeply embedded in our modern society. There is no turning back the clock, other than for those who wish to leave society altogether – no banks, mobile phones or travel.


The second alternative is to do nothing about the law relating to the current state of affairs because the challenge of creating the necessary new philosophical and legal framework is so difficult. However, that leaves unaddressed a whole series of problems – for example, that sometimes ill-considered emergency legislation authorises state action which in other circumstances would be widely seen as unacceptable.


The third approach, which I commend, is to impose effective legal controls that determine the ways in which organisations, whether state or private, can use data of this type. Some of this already exists, but it needs constant updating to deal with technological change. It should be accompanied by legislation to empower individuals to understand, control and access the data which is being collected about them in a far more effective and straightforward way than exists at the moment.


Laws to impose such controls and enhance individuals’ rights are not easy to design, and will face substantial opposition from powerful vested interests. But the relationship between individuals and the society does need proper regulation. I continue to believe that a national identity register would be a valuable means of helping to give every individual a greater right to control the use of their own identity, in a world where too many wish to abuse it.

Charles Clarke is a former Home Secretary and a Visiting Professor at the Policy Institute, King's College London.

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