Author: Layal Alghoozi
The COVID-19 pandemic has stolen the lives of approximately 500,000 individuals, resulted in millions of job losses, and sparked a global recession (and depression). Whatsmore is the familiar trend of hyper security this pandemic has brought to the surface.
Particularly, the high securitization of the pandemic, followed by anti-Asian rhetoric by populist states, are likened to the responses to 9/11. The events of 9/11 transformed the security framework into a constant, never-ending ‘war’ on terrorism, legitimizing invasive policies in the name of national security. This article intends to highlight the similar security responses and human rights implications of 9/11 and COVID-19.
9/11 has transformed our privacy. The USA Patriot Act was enacted as a response to 9/11, authorizing broad surveillance powers by monitoring phone calls, text messages, email correspondences, and credit card information. Likewise, COVID-19 risks sweeping our right to privacy.
Several states are monitoring and tracking people’s movements. For example, Singapore has created a tracing application capable of monitoring the movement of infected individuals, checking whether carriers of the virus have contacted other people. Likewise, China is installing CCTV outside homes to monitor people quarantining, while South Korea is monitoring mobile and credit card data to track movement. Other states have developed apps allowing location data to be recorded in real-time, a measure deemed disproportionate by Amnesty.
To argue that these measures are achieving results and protecting people is tempting, it however, grossly misses the point. It is not whether ‘the ends justify the means’ or whether we are willing to accept our civil liberties being undermined for the ‘greater good’, rather the question we should ask is how can we be sure that our governments will stop at national threats when they are deciding what amounts to a threat? It is no secret that both terrorism and COVID-19 are real threats. However, seeing political dissent being suppressed in the pretext of terrorism in Hong Kong, the Stansted-15 charged with terrorist offences for halting a deportation flight, several states criminalizing ‘misinformation’ amidst COVID-19 and silencing journalism and freedom of expression, reveals an extraordinary risk of misusing power in the name of security. If we are willing to accept privacy being encroached in this way, how can we guarantee that such tracking will cease after the virus passes? Is it certain that this virus will even pass, or will it remain a never-ending “war on corona” like terrorism is today?
International human rights law requires that in times of public emergency, restrictions on human rights must be legally prescribed, necessary and proportionate to the emergency. The right to privacy, being a qualified right, maybe side-stepped in response to a public threat. However, normalizing the use of surveillance, even for protection, presents knock-on effects capable of disrupting fundamental human rights. The Edward Snowden case, for example, which began with the CIA and GCHQ spying on ‘national threats’, rapidly turned into mass surveillance of the population. It was no longer ‘threats’ that were being monitored, but ordinary civilians.
Indeed, the aftermath of 9/11 has brought a new age of surveillance which has normalized pervasive security measures in the name of protecting the public, leaving a lasting imprint on security measures. This is because, during times of moral panic, our tolerance of civil liberty intrusions is lowered, and thus exploited. Due to the acceptance that a serious threat (terrorism/COVID-19) warrants an aggressive security response (monitoring), greater violations of risk creeping and altering other decisions beyond the initial security response. Therefore, seemingly harmless privacy implications do pose real threats.
Stop and Search
Stop and search powers are controversial since they feed into racial profiling while doing little to stop crime. The threat of terrorism has lowered the ‘reasonable belief’ standard needed for stop and search powers to ‘suspicion’. The UK Terrorism Act of 2000 gives officers the authority to stop and search individuals suspected of being terrorists, without a specific offence warranting such suspicion (section 43 Terrorism Act). This allows officers to conduct searches without a specific legal basis, opening the floodgates to a wrongful and prejudiced invasion of privacy and freedom of movement.
Theresa May has even warned that “if you’re black you’re six times more likely to be stopped than if you’re white” and that “about 27 per cent of stops are carried out without the “reasonable grounds for suspicion” required by law.” Lord Hope in Gillan even expressed that people of Asian appearance “may attract the constable’s attention in the first place”, grossly drawing a link to terrorism with a suspect ethnic group.
COVID-19 presents a risk of offsetting a similar targeting of suspect groups. Indeed, people of Asian origin are facing xenophobic and discriminatory attacks in light of COVID-19, with hate speech against Chinese people increased by 900%.
This is compounded by the arbitrary powers under Schedule 21 of the UK Coronavirus Act 2020 which confers powers on constables and immigration officers in England and Wales to remove persons on ‘reasonable suspicion’ that they are infected with COVID-19 (Article 7(2)). Schedule 21 allows the Secretary of State to declare countries that present a high risk of transmitting Corona as ‘infected areas’ (Article 2(2)) and deems people traveling from those countries ‘potentially infectious’ (Article 2(1)(b) if they ‘might infect or contaminate others with coronavirus’ (Article 2(1)(a)).
However, there is no real way of ascertaining whether a person is infected (other than being tested), nor is there a criterion to base ‘reasonable suspicion’. Allowing officers to stop people without clear guidance risks discrimination and targeting of Asian groups, especially since ‘reasonable suspicion’ is a low threshold. Likewise, by declaring a country ‘high risk’, the Secretary of State is creating an image that people who come from or share the objective characteristics of those countries are also high risk and therefore suspicious, discounting the possibility that other people who do not share the same characteristics may just as well be infected. Much like 9/11 which heightened threats against a particular ethnic group, COVID-19 scapegoats are likely to be targeted by law enforcement officials. While this ultimately rests on perception and officers’ personal stereotypes, this power must be cautioned against.
In conclusion, the COVID-19 pandemic presents similarities to the era of security brought in light of counter-terrorism responses by evoking hateful sentiments towards specific ethnic groups. The pandemic also provides an opportunity for states to exploit heightened fear and legitimize invasions of privacy and movement, something seen in the aftermath of 9/11. While certain rights are not absolute and therefore can be justified in the name of public health and national emergencies, we must always proceed with caution in our tolerance of such implications of our liberties and values.