24/07/2020

Post-Pandemic Thoughts: Reconstructing the Right to Privacy

 

People’s right to privacy is a fundamental claim that various organizations and activists around the world have been supporting for decades. It is not a new right, declared in the context of the Internet, but is enshrined as a Human Right and recognized in the National Constitutions of many of our countries in Latin America. However, in recent decades, and especially in the 21st century, data protection and the right to privacy have gained notorious relevance due to the reconfiguration of Internet business models. In the words of the academic Shoshana Zuboff (2019), this is the era of surveillance capitalism, where the permanent data collection from each and every one of our social interactions, mediated by information and communication technologies, constitutes the fundamental input of an industry that develops systems that in more or less precise ways allow not only to foresee our behaviors, but also to fundamentally mold them to the economic interests that support them.

It is within this context that the Covid-19 pandemic arrives.

The global pandemic triggered by the rapid spread of the new coronavirus fully impacted a world with characteristics that were previously unknown in the history of humanity: real connectivity with a means of mobility that could take us around the planet in a short time, an interconnected system of world trade from which practically no country is excluded, and a level of penetration of information and communication technologies that involve the permanent access and use of mobile devices and computers in much of the planet. The global reach of these technologies is added to the high concentration in a few big network companies, and with them, the big business opportunities  based on the production, management and handling of large volumes of data. We live in societies that are already heavily guarded and monitored, in some cases by state initiatives (China) and in others where the presence of virtual life is crossed by private sector companies (with Google at the lead, but not exclusive: Apple, Facebook, Amazon, AliBaba, among others, form the ecosystem of the great Internet players).

This scenario has already led to innumerable debates and regulatory attempts by States, with numerous pressures to move towards systems that promote private interest, such as the e-commerce agenda in the debates taking place in the World Trade Organization as well as other debates tending to safeguard the public interest, including those related to the implementation of the new Personal Data Protection Regulation in the European Union. Latin American countries are still debating which model they should incline towards for their regulatory balance, and while these debates are taking place, interference in personal privacy continues, as well as the regular and systematic recollection of data.

It is within this context that we must deal with the pandemic.

As any epidemiologist knows, when dealing with highly contagious diseases such as Covid-19, epidemiological surveillance is a central tool. Throughout the history of humanity, we have dealt with epidemics of all kinds and the mapping and tracing of contacts of infected people has been one of the strategies that have allowed us to contain the spread of diseases of this type. Thanks to Covid-19, we have learned that pandemics not only have medical components, but also important social components.

Perhaps for this reason, as soon as the real dimension of the situation was understood, the idea of ​​using the available technologies for the follow-up of contacts, the detection and diagnosis of cases and the regulation of circulation in public spaces by use of circulation permits available on people's mobile phones, appeared to be the natural strategic scenario.

Asian countries, particularly those that are more technologically advanced, such as South Korea, Singapore, and most especially China, used these technological resources to deal with the pandemic, control circulation, and follow up on cases.

In many countries around the world, including Argentina, applications were developed for different purposes, including dubious objectives for which it was not clear whether an 'app' was indeed the best solution. However, warnings from those who advocate for the right to privacy clashed with justifications based on urgent public health needs. In many cases, the implementation of numerous applications is more a problem than a solution if there is no privacy setting designed from the start, to protect the ironclad custody of the data it collects -especially in the case of medical data- and a policy of access-control and protection of personal data adjusted to the law.

It is understandable, and we must recognize that some individual rights must yield in a situation like this. However, it is essential to understand that privacy is not only an individual right, but a fundamental social and collective right. Helen Nissenbaum (2011) explains that privacy is fundamental for the development of the personality and the autonomy of individuals, but that at the same time it is an elementary component of any social relationship and implies differing degrees of access into our private lives for people from different circles of socialization. Furthermore, Nissenbaum forcefully expresses that privacy is a fundamental element for building a solid, resilient and participatory democracy, in which individuals can establish consensus, settle conflicts and build agreements.

Epidemiological surveillance is not, nor should it be, a synonym for police surveillance. Any advance on the private life of individuals, even in the context of a pandemic and with a public health justification to support it, must be determined depending on the objective pursued, be proportional in terms of these same objectives and be based on strict protocols of retention and access to this personal data that is being collected and administrated.

The health crisis may enable a state of emergency, but as soon as these measures are no longer strictly necessary, the surveillance apparatus installed to deal with the situation must be dismantled.

Unfortunately, this pandemic comes at a time when the defense of privacy seems to be a lost cause and serves to legitimize advances that we would not otherwise meekly accept. Outlining the exit strategies from this situation and the dismantling of this state of vigilance that is gradually being set up should be the essential task of those of us who fight and work for our human right to be left alone.

 

Beatriz Busaniche is a graduate and postgraduate professor at the University of Buenos Aires and at Flacso. She directs the Vía Libre Foundation, a non-profit civil organization dedicated to defending fundamental rights in environments mediated by information and communication technologies. @beabusaniche

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