Illiberalism Fueled by the Coronavirus Pandemic: An Existential Threat to Judicial Independence (Part One)

This is the 14^th  in a series of blog posts beginning on February 4, 2020 focused on justice systems’ responses to Covid-19 coronavirus  (SARS-CoV-2 is its technical name)  justice systems’ active participation in what is known as a  whole-of-society-approach (WOSA) to national security and safety threats such as Covid-19. The information in this post was drawn from recent reports in the Economist, the Wall Street Journal, the Washington Post, Time, and other news outlets. Views and opinions expressed are the author’s own. Last updated May 22, 2020. (An expanded version of both parts of this post is published in the INTERNATIONAL JOURNAL OF COURT ADMINISTRATION, Volume 11, Issue 2 (Summer 2020)).

In a Wall Street Journal essay at the end of April 2020, Joseph A. Ladapo, an associate professor at UCLA’s David Geffen School of Medicine, wrote that the coronavirus pandemic has set the stage for a showdown between civil liberties  and public health (“The Looming Civil-Liberties Battle,” April 30, 2020). I am afraid that the battle already may be lost. Infringements of privacy and restrictions on our freedom of movement and assembly may be here to stay for a long time after the coronavirus pandemic is behind us. Even before the first death from Covid-19 in December 2019, democracy and the rule of was being eroded in many parts of the world by authoritarian regimes and autocrats.  

Dr. Lodapo undoubtedly is correct when he writes that the exercise of political power rather than public health during the pandemic is at play, and that the battles over liberty “will neither be trivial nor easily quieted.” However, I disagree with his apparent sympathy for relatively small groups of protests in the United States against stay-at-home orders who are calling for an immediate opening of society. The protests are, in my view and that of many observers, a unprincipled stagecraft directed by  influential conservative groups with close connections to the Donald Trump White House (”The Quiet Hand of Conservative Groups in the Anti-Lockdown Protests, New York Times, April 21, 2020). I also reject his rather bizarre declaration that the coronavirus  “poses little danger to a large percentage of the population,” minimizing the enormity of the 64,577 virus deaths  reported by John Hopkins University on May 2^nd which passed the Vietnam War’s American military deaths from 1965 to 1971 in less than four months.

In this two-part post I explore larger and, I believe, more consequential and far-reaching political currents: the surveillance technology and restrictions of privacy, freedom of assembly and travel, once reserved for deterring terrorism and espionage, that are being applied today to the public at large to curb the transmission of coronavirus, as nations’ autocrats and would-be autocrats  around the world play on people’s fears to justify their authoritarian rule. I focus on two trends accelerated in countries’ responses around the globe to fight Covid-19. The first is the application of digital surveillance and restrictions of freedoms under the emergency powers enacted to combat the spread of the virus. The second is  “autocratization,” power grabs by autocrats and would-be autocrats  not just in authoritarian regimes but liberal democracies such as South Korea, which threaten to destroy freedoms and rights upheld as sacrosanct by most of the free world before the outbreak of Covid-19 in December 2019. 

In the “Leaders” and “International” sections of its April 25^th edition, the Economist described government under Covid-19 as a “pandemic of power grabs” with the accompanying ominous cover of its Asian and European editions.

The pandemic may have ushered in a new era of a massive shift and reprogramming of our sensibilities about data privacy and civil liberties. I argue that the  viability of the doctrines of judicial independence, the separation of powers of the judicial, legislative, and executive branches, and the checks and balances among them -- ideals and principles that are fundamental to the governance of democratic countries and institutions -- is already diminished and  in jeopardy.

Surveillance Capitalism and Beyond

In her groundbreaking book, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, Soshana Zuboff, the Charles Edward Wilson Professor Emerita at Harvard Business School, issued a dire warning about technology gone awry, a "surveillance-based economy" and the anti-democratic threats this poses. She defines surveillance capitalism as “a new economic order that claims human experience as a free raw material for translation into behavioral data” and as an “expropriation of critical human rights that is best understood as a coup from above: an overthrow of the people’s sovereignty.” Zuboff warning focuses mostly on the usual prime suspects in the digital revolution in the public sector – Google, Apple, Facebook, Amazon, and Microsoft – who do not have the best record of protecting consumer privacy. Billions of users of smart devices, she writes, are willing to give their “eyeball time” and the raw materials this provides to corporate data miners and analysts as a tradeoff for the ready access users get to the web’s goods and services.

In the public sector outside of China and a few other autocratic regimes, there was no extensive deployment of surveillance of the public at large before the outbreak of the coronavirus pandemic. The digital surveillance that Professor Zuboff warns us about was reserved for deterring terrorism and other national and international security threats. This has changed dramatically today. Fighting the virus requires finding out who is infected, monitoring them, tracing their contacts and whereabouts, and quarantining them. Today, ubiquitous smartphones have enabled governments’ and companies to use of surveillance capabilities unimaginable at the beginning of 2020.

Joanna Stern, the Washington Post’s personal technology columnist, likens contact tracing and location tracking applications on smartphones to a public-health detective who asks people suspected to be infected by Covid-19 where they have been, who they interacted with, and when it happened. Continuing their detective work, they then track down the people and businesses warning them of their exposure to an infected person and recommending quarantining and other measures.

Invasions of Privacy and Restrictions of Freedoms

All this spells more invasions of privacy and restrictions of freedoms such as contact-tracing, location tracking, and curtailing of assembly and movement than citizens would accept in normal times. The pandemic has ushered in a new era of government-sponsored digital surveillance across the globe capturing  personal information about coronavirus patients including age, gender, nationality, home and workplace addresses, travel history, links to previous coronavirus cases, identified contact persons, treatment locations, nature of confirmation of the disease, and the geographical breakdown of patients (Liza Lin and Timothy W. Martin, “Virus Surveillance Clashes with Privacy,” Wall Street Journal, April 16, 2020).  Some governments -- China, South Korea, and Taiwan -- did not seek their citizens’ permission to track their cellphones, though most have welcomed the surveillance to combat the spread of the pandemic and to ease reopening of the economy after lockdowns. The reach of surveillance and restriction of privacy rights, movement and assembly (i.e., quarantine and social distancing) depend on tough choices: (1)  between voluntary or mandatory uses of smartphones and digital data: (2) collecting and storing data in a centralized depositories (an approach favored public health authorities in France, Norway, and the United Kingdome) and a decentralized approach (favored by Germany, Italy, and the Netherlands, and one released in the United States on May 20^th by Apple and Google): (3) collection of personal or anonymized data; and (4) public or private disclosure of information gathered about where and how people get infected.

As I wrote here on March 19^th (“The Coronavirus Pandemic Puts the Courts into Unchartered Territory”), the pandemic is testing the extent to which democracies are willing and able to curtail freedoms and impose the kind of stringent restrictions put in place in China and South Korea. In those countries, electronic payment and social media applications on personal phones are being tapped to track people’s location and movements, to estimate their likelihood of infection, and to alert government authorities when quarantined individuals violate restrictions. Countries all over the world have developed smartphone applications for tracing and tracking the spread of the coronavirus pandemic.  The following describes the different approaches taken by five countries: China, South Korea, Israel, Cambodia, and the United States

China

Under its authoritarian rule, mass surveillance of an entire or a substantial portion of its population was already the norm in China before the outbreak of Covid-19.  In Xingjiang, a region in Western China where most of the citizens are Uighurs, a Muslim minority, people were required to load an application on their smartphones that allow authorities to track them wherever they go and access their data. They must show identification at many checkpoints. Cameras that scan faces involuntarily are everywhere. Elsewhere in China, using a range of personal data accessed by the government citizens are rated as part of a "social credit system" that gives them "trustworthy" scores.

The country’s surveillance is the most aggressive and invasive so far. As the pandemic hit, the Chinese government used mobile phone numbers and location data to trace residents who had left Wuhan, the center of the early outbreak of the virus. The data was given to local officials who asked identified people to quarantine, though many did not show symptoms.  They also began to track its citizens with software that analyzes their personal data to sort individuals into color-coded categories – red, yellow, or green – corresponding to their health status and level of risk for COVID-19. The move alarmed leading international human rights advocates, who fear that the government is merely using the ongoing public health crisis as a “convenient justification” to expand monitoring of its population. “This is viewed as scary stuff from a human rights perspective,” Sophie Richardson, China director at Human Rights Watch, told ABC News on April 14th. “[It is] yet another way to gather information about people to potentially use it against them in ways for which there's no legal basis.”

South Korea

South Korea, a liberal democracy, was more aggressive than most countries in testing its citizens and systematically tracking coronavirus infections. Its track and trace tools are the strongest in the world, tapping into credit card transaction, security camera footage, and smartphone data. The government publishes detailed reports about confirmed coronavirus cases including patients’ ages, home and work addresses, trips taken, and restaurants visited. Authorities are using surveillance dossiers to identify people who are suspected of having come into contact with coronavirus patients and encouraging them to get tested or stay in their homes. The government claimed that it can identify and locate at-risk patients in ten minutes or less. The Wall Street Journal on April 16^th reported Suh Chae-wan of the Minbyun Lawyers for Democratic Society saying that South Korea has accessed far more information on people than those with the virus.

After two months of intensive social distancing, South Korea lifted  its most intrusive restrictions, but issued  detailed guidelines for how people and communities should behave until a coronavirus vaccine becomes available including: the wearing of masks;  hotels and restaurants taking the temperatures of patrons before entry; the sanitizing of hands before shopping at stores; ventilation of hotel rooms  after travelers check out; requiring visitors to zoos and aquariums to remain six feet apart; and shouting and hugging is discouraged at sporting events (“South Korea To Open Up, But Carefully,” Wall Street Journal, April 29, 2020).  A “prevention officer” must be appointed at wedding and funeral gatherings to take participants’ temperatures and monitor other symptoms such as coughing. The guidelines were developed by a panel of 18 health officials, medical experts, and civic group officials formed on April 10^th.

Israel

Israel has tapped into its surveillance technology heretofore largely focused on terrorism and espionage to combat the coronavirus pandemic. With access to telecom data, the  Israel Security Agency, better known by the acronym “Shin Bet,” coordinates with the country’s health ministry to send text messages to citizens who have come into contact with coronavirus carriers telling them to quarantine for two weeks. Violators face fines. Officials at the health ministry praised the Shin Bet effort calling it, according to the Wall Street Journal reporting, “crucial to stopping the spread of the virus.” In a letter to Israel’s parliament, the Israel Medical Association, however, questioned whether Shin Bet’s intrusive monitoring was necessary given that most of the population was already confined to their homes by prior government orders. Within days of the letter, Israel’s Supreme Court ordered parliament to form a supervisory committee to oversee the Shin Bet monitoring and tracking. More troubling for privacy advocates as the country prepares to reopen its economy is a proposal of a digital health-ranking system by Israel’s defense minister that was awaiting approval by the attorney general and prime minister.  The system would rank all citizens on a ten-point scale. People at higher risk would have a higher score. Those with a score of 9.5 or above would be required to be tested.

Cambodia

The emergency law in Cambodia, a constitutional monarchy, empowers the government to impose any measures deemed appropriate to fight Covid-19, far exceeding those of democratic governments including unlimited surveillance of its citizenry, restrictions of movements, banning of public gatherings, censoring of social media, seizing of property, and declaration of martial law. Hun Sen, the longest-serving prime minister, has led Cambodia’s population to steady gain in material living standards in exchange for his edicts according to the classic autocrat’s bargain. Today Mr. Hun Sen and his Cambodian People’s Party can act without any oversight and opposition. The purpose of Cambodia’s emergency law “is not unique, as there is this law already in other democratic countries” a spokesperson for the ministry of justice is reported saying by the Economist. When a news director accurately reported Mr. Hun Sen admitting that his government lacked the financial resources to ride out the pandemic, the news director was arrested, and his news site shut down.

Other governments in at least  half of the countries in the world today have instituted or are planning to implement widely reported digital surveillance, quarantining of varying degrees of intrusiveness including: the installation of surveillance gadgets in the homes of people placed under quarantine (Western Australia); imposition of curfews (Serbia); facial recognition to catch people violating quarantine (Russia); “geofencing” that builds virtual fences around quarantine zones (India and Hong Kong);  the use of drones to spot violators of stay-at-home orders (England); social distancing and isolation of members of the political opposition (Azerbaijan); censorship and  jailing of those who spread misinformation or cause uncertainty to the population (Turkey, Thailand, and Bolivia).

United States

While such invasive surveillance measures may be more difficult to implement in the United States, privacy advocates are alarmed and pressing for federal legislation (“Congress Needs to Pass Coronavirus Privacy Laws,” Washington Post, May 14, 2020), such measures are today being introduced and developed at a rapid pace at the national, regional, and local levels. Smart phones and Bluetooth -- the wireless technology which allows digital devices to easily transfer files at high speeds -- are central to the planned efforts.

As reported by the New York Times (“As the Nation Begins Virus Tracing, It Could Learn From This N.J. City,” May 21, 2020), manual systems of contact tracing, a once obscure public health measure,  have become an important part of the battle  against the coronavirus and the push to reopen businesses in cities and states. To safely reopen the economy, the United States needs about 200,000 coronavirus contact tracers to supplement data collected by the smartphone technology according to one estimate by the Milken Institute School of Public Health at George Washington University. The state of Virginia alone is recruiting 13,000 on-the-ground tracers, data analysts, and tracing supervisors. A hybrid of automated and manual systems, which most states and localities are using, may be the best.

As Americans are returning to work with the spread of the pandemic levels easing, companies are planning unprecedented surveillance of employees as the only way to reopen without risks to their employees’ health. As reported by the Wall Street Journal (“Offices Prepare to Reopen With New Surveillance Tools,” May 6, 2020), some companies are employing heretofore draconian measures similar to China’s "social credit system" that assigns "trustworthy" scores to citizens (see above). PricewaterhouseCoopers (PwC), the second largest professional services firm network in the world, is preparing to launch a smartphone contact-tracing application that analyzes workers’ interactions with coworkers. More than 50 of its clients have expressed interest in the tool. For example, the Interpublic Group of Companies, Inc., an American advertising company that employs 9,700 people in New York City, is considering using the app in classifying employees into three levels. An employee who has had the coronavirus and tests positive for the presence of antibodies would be classified at the lowest risk, Level 1, and would be allowed to return to work in a first wave of returning workers when states and cities lift stay-at-home restrictions. Employees without antibodies, including those who are under 65 years old, who do not live in the same household with high-risk people, and who do not have serious underlying conditions, could return to work in a second wave. At-risk employees at Level 3, including those over 65 years old, pregnant women, and those with chronic diseases would be the last allowed to return to work.

Another client of PwC, the real-estate company RXR, is testing a smartphone application that scores employees on the degree to which they comply with social-distancing rules. The more time an employee stays more than six feet from coworkers translates to a higher score.

No agreed upon standards exist today for what tools are effective, and how they should be used protect privacy and security. Steven Feldstein, an associate professor who studies digital surveillance at Boise State University in Idaho, said that we’re “in a bit of a Wild West.” Without federal guidelines or other regulations, it is a “free for all right now in terms of who’s doing what,” he said.

The Wall Street Journal reported the prediction of Jason M. Schultz, professor of clinical law at New York University, that such surveillance tools might remain after the coronavirus pandemic. “Employers don’t really have any incentives to remove surveillance once they install it,” Schultz is quoted saying. And, Scott Rechler, RXR’s chief executive, predicts that office workers will get used to surveillance, just as they did for check-ins after the 9/11 terrorist attacks.

Among governments, each state or public health system will be deciding what contract tracing application to use, which is likely to mean incompatible applications with different smartphone technologies using Bluetooth contact or location data  – or some combination of the two -- with varying degrees of accuracy and privacy protections. Stern personally tested two such systems, one called Care19 intended for use in North and South Dakota, and Utah’s Healthy Together smartphone tool, and found both wanting in accuracy and privacy protections. She found the location data services – based on GPS and cellular W-Fi signals – most troubling for privacy protections. Before rushing out to download such applications that are made available at the regional and local level, she counselled readers  to investigate the application’s technology (the Care19 app located her in an establishment she may have been near but never entered), to weigh the privacy and protection tradeoffs (if too few infected people agree to use the app it won’t work and you will have allowed access to your data for no protection), and “go low tech” and manually record where, when, and with whom you interact (some hybrid of automated and manual systems may be the best).

As reported by major news outlets on April 10,^, 2020, Apple and Google, the two Silicon Valley giants that control the operations of most of the smartphones on earth and the major drivers of surveillance capitalism, announced what was unthinkable before the outbreak of Covid-19. They agreed to work together to track the virus using an application that health officials can use, along with conventional means that rely on people’s memory of where they have been and with whom they interacted,  to identify sickened patients’ movements, provided that they agree to provide that information.

Less than two months later on 20^th, the two companies released their jointly developed smartphone application (“Apple, Google Issue System to Track Virus,” Wall Street Journal, May 21, 2020). Their contact tracking tool uses Bluetooth-enabled proximity sensors to track whether users’ phones are within a certain distance of another by exchanging digital codes.  If a user tests positive for coronavirus and volunteers to participate in the system, other phone users will be able to tell whether they got close to the infected person to risk a potential exposure. The Bluetooth technology connects phones by changing the digital signals, or “keys,” periodically to hide users’ unique identity, a feature designed to protect security and privacy. But as reported by the Washington Post’s Catherine Stupp on May 5 (“Virus Apps Raise Security Questions”), Bluetooth’s complexity – its specifications are several thousand pages long -- makes the technology vulnerable to security and privacy breaches.

Unlike many countries’ contact tracing apps that collect data in a centralized manner in government servers, contact data collected and stored in a decentralized manner privately on users’ own phones beyond the reach of unscrupulous developers and untrustworthy governments.  Many countries including Germany, Switzerland, Estonia, and Austria, were already building applications to track infections, now stand ready to rewrite their software to take advantage of Apple’s and Google’s joint effort. U.S. states including North Dakota, Alabama, and South Carolina, as well as 22 countries, reportedly had been given accessed to the Apple-Google technology.

Part 2 of this post explores autocratization and illiberalism whether this will be the new normal for courts and justice system institutions.

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