Weapons used to battle COVID-19 are also laying siege to freedoms

This column is an opinion by Errol Mendes, a professor of constitutional and international law at the University of Ottawa and president of the International Commission of Jurists, Canada.​​​​​ For more information about CBC's Opinion section, please see the FAQ.

Whatever the outcome of the pandemic crisis, there will be a fundamental clash of societal values in democratic societies arising out of the fight against the COVID-19 virus. Those clashing values will determine how much of the world will retain true liberal democracies, and who will tilt towards authoritarianism.

The source of these clashing values will be the technology, science and governmental power used to fight the pandemic. Can these weapons mobilized against the pandemic be employed in a manner that does not substantially and permanently undermine democratic civil liberties, or will they also be used by elites to gain or cement power and reinforce authoritarian states?

China has taken the lead in making clear which direction it is taking, using the state's most sophisticated technologies in the fight against the virus. This includes facial recognition, personalized phone location tracking, and the mandatory reporting and tracking of temperature and medical conditions. It is likely that China will continue using these technologies to maintain surveillance of the population once the virus crisis is over.

However, other countries — especially those that regard themselves as democracies — will have to make that fundamental choice of protecting societal values versus holding on to increased government power.

At least 11 countries have adopted similar uses of digital and other technologies to track and defeat this virus, some more extreme than others. These include democracies such as South Korea, which has not only tracked mobile phones but has made available public maps to alert people when they have intersected with those who have contracted the virus.

Singapore has developed a similar app for mobile phones to alert people to the vicinity of afflicted individuals.

Taiwan has developed an "electronic fence" that gives an alert when those in quarantine have left their houses.

Israel has followed suit by passing an emergency law to allow mobile phone tracking of those infected with the virus, and community tracking of all those who were likely in contact with them, in order to identify and impose mandatory quarantine on people most likely to expand the community transmission of the disease. The numbers likely to be caught in this digital net are expected to be huge.

Civil liberties activists are warning that the use of these powerful surveillance technologies by governments could set a dangerous precedent.

Even Prime Minister Justin Trudeau, the head of a country that prides itself on promotion of human rights and individual liberty internationally, is not ruling out the use of mobile phone tracking to enforce quarantine of those affected by the virus.

Canadian privacy experts are warning that such use of bulk data through tracking should at least be anonymized, as Italy, Austria and Germany have done.

They add that the use of personally identifiable data, as China and Israel have adopted, would be fraught with civil liberties violations. And while the South Korean government has not circulated the names of infected people, some of the apps that have been used in that country can disclose information related to nationality, gender, age range, date of infection, and places people have visited, which could approximate to personalized information.

Democratic institutions

The danger is that supposedly democratic governments that get total control of large parts of society as a result of measures to contain COVID-19 may be tempted to do the same with the key democratic institutions.

Hungary, in the heart of the European Union, provides the most dire warning of this propensity. Hungarian Prime Minister Viktor Orban has already undermined the most vital democratic institutions in his country, ostensibly to assist in the fight against the virus. Under an emergency law passed on March 30 by the country's parliament, which Orban controls, he can now override any law preventing the use of constitutional powers to limit emergencies. The country's parliament will be suspended during the pandemic, ensuring that there are no limits to the prime minister's powers.

In the United States, the Trump administration has used the pandemic to reinforce its tendency to xenophobia, tightening border controls and enhancing measures against undocumented immigrants and others. The Democratic majority in the House of Representatives may have prevented the possibility of the Trump Administration going further, standing in the way of measures such as arbitrary detentions and pausing court proceedings.

In times of emergency, it is vital for democratic government to have the peoples' trust in what scientific, political and social information is provided to them by public authorities.

After initial confusion and deadly delay, Italy provides an example where trust by the people in the direction of the government permitted drastic actions to be taken in response to the virus. There has been between 76 and 90 per cent support for the wartime-like measures ordered in large part by presidential and prime ministerial decrees.

Given these examples of the clash of government powers and societal values, it is critical for the democratic world that fundamental principles be observed even in the face of what is the most serious global crisis since the end of the two world wars. These should include:

• Assuring accurate information is provided to the public on the nature and scope and response to the threats to public health, based on the best available scientific expertise.
• An acknowledgement that measures by governments to establish uncontrolled authoritarian power and suppress dissent to combat the virus is not compatible with membership in the community of democracies.
• Recognition that digital technologies are both vital instruments to combat the virus, and also a potential long-term threat to critical democratic values. This will require detailed rules and oversight regarding what are the reasonable, proportionate, and wherever possible anonymized, uses of such technologies, in order to respect and protect the liberty and security of citizens.
• The rule of law and non-discrimination of minorities must be respected. This includes reasoned, proportionate and minimal curtailment of civil liberties, for a limited period during the emergency, and subject to judicial and/or legislative review.

Indeed, the democratic world may never be the same after the 2020 pandemic crisis is over. There will be a clash not of civilizations, but of societal values, resulting in the risk that the democratic world will shrink while the illiberal, authoritarian and outright dictatorships gain the most from this historic global crisis.

This does not have to be the outcome if all of society in democratic nations rise to a challenge that may be as big and last longer than the threat posed by this deadly virus.

• This column is part of CBC's Opinion section. For more information about this section, please read our FAQ.