Discussion Prompt: What existing national security legislation, new bulk analysis efforts, and emergency measures have different states deployed to curb the spread of Covid-19?
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The Chinese Communist Party is using the current crisis to showcase its most dystopian iteration of total surveillance yet. As Europe anxiously looks to Beijing for technological solutions to Covid-19, the window of what we perceive to be acceptable surveillance practice may shift accordingly. It is therefore essential that we stick to the principles of proportionality and necessity. They force us to spell out the aim of surveillance and tell us where to search for inspiration instead.
There is a recurring idea in Western political rhetoric, going back to American linguist Benjamin Zimmer and famously picked up by John F. Kennedy in his 1960 presidential campaign rallies. “The Chinese”, it goes, “use two brush strokes to write the word ‘crisis’. One brush stroke stands for danger; the other for opportunity”. Like many other tropes from motivational speaking, this is as mistranslated as it feels commonplace. Yet, if you had to encapsulate how the Chinese Communist Party (CCP) has approached the outbreak of a global pandemic spreading from its home soil in two words, ‘danger’ and ‘opportunity’ would very much fit the bill. One such opportunity is the full fortification of unprecedented, nearly unthinkable total surveillance. And the CCP is aggressively seizing it. Under the pretext of fighting a public health emergency, the country’s vast existing surveillance apparatus is engaged and repurposed, while new and even more radical surveillance measures are introduced at lightning speed. Reports in the international media abound of yet another Orwellian technology introduced over night in the subways of Zhengzhou or on the heads of police on the streets of Beijing. As pervasive biometric surveillance, location tracking, big data (and even good old denunciation) culminate in the restriction of movement and personalised risk scoring, the virus that is the surveillance state is undergoing its perhaps most groundbreaking mutation yet. European democracies must now more than ever keep a level head in order to ensure that it doesn’t reach our shores.
In this article I will first sketch the role of surveillance technology in the CCP’s response to Covid-19 as a building block in its pursuit of complete social control. I will then make the case that as Europe desperately looks to China for clues on how to curb the spread of the virus, the window of what Europeans will perceive to be acceptable surveillance practice may begin to shift. Lastly, I will argue that to avoid this, the principle of necessity should remain the golden rule for navigating the search for technological solutions to this pandemic.
Surveillance as raison d’etat
Long before SARS-CoV 2 crossed the species barrier and gripped the world, the Chinese leadership had already been meticulously overhauling the fabric of social order in the country. With full national standardisation of its notorious social credit system expected sometime this year, the Chinese leadership has been driving a thorough technological makeover of both physical and digital space.
The region of Xinjiang — where under the aegis of party thought leader Chen Quanguo live video surveillance and facial recognition have aided the cultural genocide against Uyghurs, Kazakhs, and other ethnic minorities — has been the gruesome laboratory for that makeover. But the technology tried and tested there has quickly spread to the rest of the country. In 2018, 350 million surveillance cameras were operating across the country, a number expected to rise to over 560 million by 2021 — or roughly one camera for every 2.5 people, which is more than double the rate of the UK. This vast network of video surveillance has enabled the rapid introduction of facial recognition technology into everyday life over the past two years. At the same time, citizens’ social life, economic activity, and personal identity have more or less forcibly converged around government-sponsored WeChat.
The outbreak of Covid-19 has fast-tracked many of these developments and given rise to new, extreme, and evermore integrated ways of social control. From police wearing AI helmets that can not only perform facial recognition but also scan body temperature in real time, and mandatory data-mining apps that issue colour codes to restrict public movement, to personalised surveillance cameras monitoring the apartment doors of quarantined citizens; examples of dystopian counter-measures abound. The effectiveness of many of them is doubtful, considering the intransparency of the apps’ underlying algorithms and the at times haphazard fashion in which the data has been utilised. The enormous risk they pose to human rights and civil liberties, however, is crystal clear. Yet, they have featured prominently in China’s larger and seemingly successful effort to curb the spread of the virus, which appears to have left a lasting impression on other countries still in the midst of emergency.
It is to be expected that many of these measures will not be rolled back when the crisis is over. After all, the virus has afforded the CCP with a very usable new securitisation narrative, which taps into widespread fear in the population. Even for authoritarians, narratives like that don’t come a dime a dozen and usually require years of targeted propaganda. As accustomisation sets in, Corona-style surveillance, or some version of it, may very well be the new normal in China.
The Overton window of European surveillance policy
This is likely to have significant implications for surveillance policy in other parts of the world. For one because the CCP has a strong political and economic interest in convincing other countries that its model of governance is viable. Covid-19 has only given wings to its attempt to broadly export authoritarianism. For another, because the attention citizens and politicians in Europe pay to the Chinese example in the pandemic is likely to shift what they will consider reasonable surveillance practice.
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In political theory, this is called the Overton window (see Figure 1). It postulates that at any given time there is a window of ideas that is politically mainstream, i.e. that the public is willing to accept. Outside of this window are ideas that appear radical or even unthinkable to most. According to the model, policy is made and changed by politicians keeping an ear to the ground and responding to shifts in public opinion. The concept of the Overton window is a useful way of thinking about the relationship between policy and public opinion, but it also provides a theory of change. Joseph Overton, who developed the concept, thought that the window is moved most effectively when people are brought to consider an extreme idea on the fringes. Even if they discard that idea, it will make other less radical ones seem more acceptable in comparison, which slowly but surely shifts the window towards that direction.
Figure 2 (below) shows what the Overton window for the use of (surveillance) technology against Covid-19 might look like. It maps some of the different solutions which are deployed or discussed at present on a graph from most privacy-invasive to least privacy-invasive (or most freedom to least freedom, to speak with the original model); from the real-time temperature screening & face-recognising headgear in China on the one extreme to ignoring the virus altogether on the other, as Brazil’s extreme right-wing president Jair Bolsonaro has propagated.
(click image to enlarge)
The window in the middle rests on the assumption that the European public will reject extremely invasive ideas because of the dangers to civil liberty and democracy they entail and that it will reject extremely non-invasive ideas because they won’t seem fit to withstand the brutal dynamics of a pandemic. From the perspective of the European public, most measures employed in China currently appear radical bordering on unthinkable as is probably the case for Israel’s emergency orders equipping its secret service with the authority to track its citizens. In contrast, non-automated contact tracing is quickly overwhelmed when countries hit exponential virus growth, and might be seen by many as coming too late at this time in Europe. Despite its merits, the suggestion that health authorities fashion an OpenSource map from the data they are collecting anyway, which scores risk for time and place but not individuals, has not gained much traction either.
This leaves a window of measures that currently seem acceptable in Europe, at least judging by how eager governments have been to adopt them or by how vividly they feature in public debate. At the more invasive end is the demand that mobile operating system providers like Google and Apple pool their access to users’ geolocation, cell ID, Bluetooth, and WiFi fingerprints in a giant database. As these companies already have personal information about the people using their product, the premium on anonymisation and oversight would be enormous. At the less invasive end of the window is a modified version of the TraceTogether app promisingly used in Singapore. The Singaporean model is based on decentrally saved and — in the case of infection — anonymously pooled Bluetooth data to identify close contacts based on the proximity and duration of encounters. A European adaptation could be even more data-minimising by eliminating unnecessary ‘features’ such as the need to link the installation to the user’s (uniquely identifiable) phone number.
China’s ideational pull
Despite its simplification, mapping the ‘global spectrum’ of ideas and identifying what is currently considered political mainstream in Europe is helpful in tracing the underlying dynamic of how it might change. The Overton window predicts that earnest consideration of an extreme idea, even if we reject it, means that all less extreme ones seem less radical and therefore more acceptable to us in comparison. This is particularly relevant now that we are more willing to entertain even the most egregious propositions in the face of a novel threat. In consequence, as we look to China for how to fight the pandemic, the window of ideas acceptable to us may soon begin to encompass modes of surveillance previously thought to be excessive and radical.
Of course, it is also the very novelty and proportion of this situation which may require us to consider new technological solutions, and we are. The kind of tracking measures currently discussed in European democracies would have earned a storm of discontent just a few months ago. But just how invasive we will allow these measures to be, now and in the near future, also has to do with the extent to which we perceive China to be blazing the trail on surveillance norms, as much as we might reject their radicality now.
It many ways, this is already happening. Prominent commentators in technology, journalism, and human rights have publicly stated that in this time of crisis and, in light of China’s efforts, previously unthinkable ways of surveillance suddenly seem acceptable to them, also in the long term. Even Glenn Greenwald, who famously reported on the Snowden leaks and co-founded The Intercept, said this: “The kind of digital surveillance that I spent a lot of years — even before Snowden, and then obviously, the two or three years during Snowden — advocating against is now something I think could be warranted principally to stave off the more brute solutions that were used in China”.
China’s influence on the Overton window is a real trap. But how can we avoid falling into it? With China in the global limelight to showcase its model of total surveillance, who is to say that in a few months, granting our secret services the authority to track us or making personalised health code apps mandatory won’t also seem acceptable to us?
Necessity as the golden rule
Luckily, we may not need to look very far for an answer to this problem. The elements of proportionality as a principle of human rights limitations have been applied for decades in both civil and common law by most democratic high courts, including the ECtHR and the CJEU. They go a long way in helping us keep a level head and escape the ideational pull of China. That is because they remind us to always look for solutions at the lower end of the invasiveness spectrum. Especially the test of necessity, which together with legitimacy, adequacy, and proportionality stricto sensu make up the principle of proportionality, now proves a potent guideline for balancing the concerns of public health and privacy. It prescribes that “the government may only use the least restrictive measure for achieving the aim, the one that causes least damage to protected rights and interests”. In our context, this means that the measure (or combination of measures) that is least invasive to our right to privacy but still manages to achieve its aim should be implemented, with no further regard paid to the more invasive ideas promoted in other parts of the globe.
Obviously, this assessment stands and falls with how one defines this aim. This comes with another trap that is as easy to fall into as it is crucial to avoid. With daily death toll tickers dominating the news cycle, the snake charmers of surveillance might proclaim that in order to keep the number of deaths as low as possible, no sacrifice can be too great. Of course, these numbers are very important; there’s a human being and a tale of suffering and grief behind each one. Yet, it is an inconvenient but also quite confidence-inspiring truth about our democratic societies that they always seek to strike a balance between liberty and security, even manage to resolve this ostensible contradiction on good days. Even though Covid-19 is novel territory for all of us, it still takes place on that very same tension field, which the principle of proportionality and the test of necessity help us navigate.
The sensible aim endorsed by epidemiologists is therefore to bring and keep the rate of infections below 1 to halt the exponential growth of the virus in the population. This is the “the hammer and the dance”. Heavy social distancing through national lockdowns and curfews is the hammer drastically curtailing the rate of infection. A gradual return to the world outside while playing around with various interventions to keep it below 1 is us dancing.
It is the dance and not the hammer where tech solutions will come in in Europe, helping health authorities to rapidly trace new infection chains and allowing citizens to evaluate their risk. Looking to Taiwan or Singapore, whose response to the virus has been a multitude more balanced than China’s but no less effective, shows us that once the number of active cases has receded and our lockdowns will be lifted, radical surveillance will not be necessary to achieve our aim. The chances are good that in combination with a significant hike in testing, equipment production, and health authority hiring, as well as reasonable interventions into public life — such as social distancing of risk groups or a temporary ban on mass gatherings — fairly non-invasive contact tracing methods will be all that is needed to successfully manage the virus.
Perhaps, for all the ways in which this crisis endangers our way of life, it may really prove to be an opportunity as well. To demonstrate that civil liberty and privacy, to which European democracies have claimed to subscribe time and again, isn’t a fair-weather ideal that gets thrown over board once the going gets rough. The principle of necessity might lead us to an Open Source risk map, a modified version of TraceTogether, or even a replication of the Singaporean app, but it will ensure that we avoid thinking that anything less extreme than what China does is somehow acceptable. It will also remind us that the real trailblazers on the harnessing of digital technology these days (and always) aren’t the countries who implement the most extreme ideas or engage in the most intimidating security theatre but those who get results with the least invasive of measures.