The Behavioural Surveillance Dilemma: Human Rights, Technology and the New Normal

In April 2020, the UN Secretary-General António Guterres raised concerns about the increase in human rights abuses triggered by the pandemic, urging the need to respond to both ‘the emergency of today and the recovery of tomorrow’.[1] Governments and institutions worldwide have been moving quickly, and to a lesser or greater extent, they have been relying on technology and on the data insights it promises to provide. Examples can be found across regions and across the technology spectrum, from the use of drones to enforce lock-down in France[2] to ‘stay at home’ apps in Abu Dhabi[3], immunity passports in Estonia[4] and wearable trackers in Singapore[5]. In fact, so many technologies are being used to gather and analyse data in response to the pandemic, that monitoring them and raising awareness about the challenges they bring for civil liberties and fundamental freedoms has become a significant effort amongst digital rights groups worldwide[6] and increasingly within the human rights community.[7]

The widespread use of pandemic response technologies has brought with it the simultaneous normalisation of data collection on our movements. This has been silently sanctioned by society, not because it is necessarily good, but because the idea of not doing so is much worse.

The rapid shift towards behavioural surveillance has involved the blending of individual level data across the public and private sectors. In straightforward terms, this means that data sets on individuals that do not commonly mix, such as data from credit card transactions with travel data or mobile phone data with cctv cameras, have been put into action at scale for the greater good almost overnight.[8] Whilst there is necessary health data involved in this mix, most of the data is valuable as no matter what the source, it indicates our movements. What we are seeing in many instances is a level of data synthesis that is normally reserved for the police and intelligence services. Even then, emergency powers have overridden normal practices and safeguards in many cases. When border control and military action is added to this dynamic,[9] as is often the case in times of national crisis, a kind of behavioural surveillance superpower emerges, operating at all levels – data on individuals’  movements at a community, regional and population level – all mobilised to save us from death and economic ruin.

Some health, science and technology researchers say that not enough is being done to use behavioural data to stem the flow of the virus, and what is being done, often needs to be done better[10]. They call for more action. In order for data-driven efforts to be effective, they have to be high quality and comprehensive. Partial data sets, inaccuracies and security risks as well as lack of public support in some cases make these solutions ineffective. Failures in small-scale experiments by many governments have led to projects being scrapped such as in Norway[11] and Madhya Pradesh, India[12]. For this reason, as the months roll on, investment seems to be moving away from home grown efforts towards more comprehensive approaches. Equally, those who advocate for the mass collection of data on individuals, claim that in order for data to be of real value –  providing evidence, giving insights, showing patterns and indicating trends – it has to be comprehensive. As fears about the long-term impacts of the pandemic increase as well as a ‘never again’ sentiment, it is likely that in order for data solutions to be effective, there will be a move toward large-scale enforced efforts. Population level behavioural data will not only support ‘track – trace – control’ strategies but they will also be essential for enabling early warning systems. For these efforts to work, the further involvement of some of the biggest consumer tech companies in the world, such as Google, Apple and Tencent, is inevitable.[13]

The digital rights community, is more cautious about behavioural surveillance responses to the pandemic.[14] They question the validity of these measures and their efficacy, and are rightly concerned about the privacy implications for individuals today.[15] However, they are also worried about the civil liberties of societies tomorrow. 9/11 is front of mind. The ‘war on terror’ created sweeping surveillance powers for authorities, in the name of national security that were hard to roll-back, extending over two decades.[16] During this time, as the Snowden leaks evidenced, an invasive, population-level surveillance infrastructure was set up that relied on data from the private sector.  Calls for the ‘necessary and proportionate’ use of behavioural surveillance technologies have been consistently met with arguments for necessity. However, there is already concern this data can be misused to silence dissenting voices and investigate protests.[17] With the Covid-19 pandemic showing no signs of abating, we risk condoning additional surveillance powers based on human movement that can be easily abused. The surveillance of movement en masse is relatively new at this level and has significant implications we are yet to fully understand for freedom of movement and assembly.

The truth is, both of these positions – the advocates and the critics – are valid. In the short term, no one wants the constant threat of a pandemic looming over their family, friends and livelihood and disrupting world order. If data on our every movement can solve it, then so be it. Yet, in the long term, no one wants to lose their freedoms and rights in society. If this becomes the new normal, or we live in a future in which where we can go, who we can see and what work we can do is dictated by our data, then as societies we will not be so accepting.[18] Fundamentally, we will have to get better at navigating the trade-offs. A paper by science and technology academics in response to these dilemmas states this starkly: “Control of the pandemic requires control of people—including their mobility and other behaviors.“[19] That is why it is so hard to navigate the value based decisions that have to be made.

Concerns about individual behavioural surveillance are often discussed in terms of privacy.[20] Yet, to reduce these concerns to privacy is not only ignoring privacy as a pre-condition for all other freedoms such as speech, assembly and association but also to overlook the risks that behavioural surveillance poses at a population level and how this can be abused. It also denies the lessons of the past two decades. Centralised data sets on individual behaviour at scale have a direct relation with the acquisition of knowledge, wealth and power in an entirely undemocratic way, as Shoshana Zuboff has demonstrated extensively in her book The Age of Surveillance Capitalism, and more recently, Naomi Klein has explored on the power of big tech in response to the pandemic.[21]

Covid-19 is the global public health crisis that quickly became an economic, political and human rights crisis and a reminder of how little we are doing to reduce the negative impacts of the age of the Anthropocene. This moment of global vulnerability has highlighted the fact that as societies, we face increasing risks from crises, not just pandemics but also natural disasters and the effects of climate change. In this scenario, data on human movement at scale will be increasingly valuable and the dilemmas outlined above will only increase.[22] We need to be having a more complex and rigorous debate about the trade-offs involved in monitoring human behaviour at scale and how pressures to use these technologies to mitigate the impacts of crises will create new centres of power, exacerbate inequities and effect fundamental rights and freedoms.

If we are to use this moment to do better than before, we must find ways not to sideline the challenges of techno-solutionism. We must embrace the many issues we are yet to solve if we want to seek the benefits of the data infrastructures we have put in place without eroding societies core values. If we do not, we will find ourselves in the future, dealing with the impacts of the permanent monitoring of our daily movements at a planetary scale.