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Time and again, governments have used crises to expand their power, and often their intrusion into citizens\u2019 lives. The COVID-19 pandemic has seen this pattern play out on a huge scale. From deploying\u00a0drones<\/strong><\/span><\/a>\u00a0or\u00a0ankle monitors to enforce quarantine orders<\/strong><\/span><\/a>\u00a0<\/strong><\/span>to proposals to use\u00a0face recognition<\/a><\/strong><\/span>\u00a0or\u00a0thermal imaging cameras<\/a><\/strong><\/span>\u00a0for monitoring public spaces, governments around the world have been adopting intrusive measures in their quest to contain the pandemic.<\/span><\/p>\n EFF has fought for years against the often secretive governmental use of cell phone location data. Governments have repeatedly sought to obtain this data without a court order, dodged oversight of how they used and accessed it, misleadingly downplayed its sensitivity, and forced mobile operators to retain it. In the past, these uses were most often justified with arguments of law enforcement or national security necessity. Now, some of the same location surveillance powers are being demanded\u2014or sometimes simply seized\u2014without making a significant contribution to containing COVID-19<\/a><\/strong><\/span>. Despite the\u00a0lack of evidence<\/a>\u00a0<\/strong><\/span>to show the effectiveness of location data to stop the spread of the virus, a number of countries\u2019 governments have used the crisis to introduce completely new surveillance powers or extend old ones to new COVID-related purposes. For example, data retention laws compel telecom companies to continuously collect and store metadata of a whole population for a certain period of time. In Europe, the Court of Justice of the European Union\u00a0declared such mandates illegal under EU law<\/a><\/strong><\/span>.<\/span><\/p>\n Like other emergency measures, it may be an uphill battle to roll back new location surveillance once the epidemic subsides. And because governments have not shown its effectiveness, there\u2019s no justification for this intrusion on people\u2019s fundamental freedoms in the first place.<\/span><\/p>\n Mobile carriers happen to know their subscribers\u2019 phone\u2019s locations (usually the same as the locations of the subscribers themselves) from moment to moment because of the way cellular networks work. That knowledge has turned into one of the most extensive data sources for governments\u2014and not infrequently advertisers, stalkers, or spies\u2014interested in tracking people\u2019s movements. But while phone location data is sufficient to show whether someone went to church or the movies, it simply is not accurate enough to show whether two people were close enough together to transmit the virus (commonly characterized as a distance of two meters, or about six feet).<\/span><\/p>\n While location surveillance is problematic at any time, the coronavirus crisis has led to a rapid uptick in its use; many measures to facilitate it have been passed by fast-tracked legislative procedures during national state of emergencies. Some governments have even bypassed legislators entirely and relied on executive power to roll out expanded location surveillance\u2014making it even less transparent and democratically legitimate than usual. Governments may use the urgency of the crisis to erode limits on the ways people\u2019s location histories can be used, demand this data be turned over to authorities in bulk, or require companies to stockpile records of where their customers have been.<\/span><\/p>\n Attempts at rapid expansions of government location surveillance authority have come to light in at least seven countries.<\/span><\/p>\n In\u00a0Israel,<\/strong>\u00a0in a significant win for privacy, Israel\u2019s High Court of Justice has recently\u00a0revoked<\/strong><\/span><\/a>\u00a0the authorization of the police to access location data for contact tracing without a court order. On March 16th, the government had approved emergency\u00a0regulations<\/strong><\/span><\/a>,\u00a048 hours after<\/a><\/strong><\/span>\u00a0Prime Minister Benjamin Netanyahu\u00a0announced<\/strong><\/span><\/a>\u00a0his government\u2019s intention to approve health tracking methods. The regulations enabled both the police and Israel\u2019s domestic security agency (usually known as Shabak or Shin Bet, after its Hebrew acronym) to track the whereabouts of persons that might be infected or are suspected to be infected with COVID-19 without a warrant. The\u00a0emergency regulation<\/strong><\/span><\/a>\u00a0<\/strong><\/span>has now been suspended, and the Court has\u00a0ordered<\/a><\/strong><\/span>\u00a0that the government address the use of mobile phone tracking through legislation. Despite the win, the fight against warrantless access to location data is far from over: on May 5th, the parliament\u2019s Intelligence Subcommittee voted 6-3 to\u00a0extend<\/a><\/strong><\/span>\u00a0the Shin Bet\u2019s warrantless access to location data to track infected people, while the government is working towards advancing\u00a0legislation<\/strong><\/span><\/a>\u00a0to enable this form of surveillance more permanently. Right after the approval of the emergency regulations on March 16th, the Association for Civil Rights in Israel filed a\u00a0petition<\/strong><\/span><\/a>\u00a0to Israel\u2019s High Court stressing the need to protect democracy during the pandemic:<\/span><\/p>\n Democracy is measured precisely in those situations when the public is afraid, exposed day and night to nightmare scenarios [\u2026]. Precisely in such moments, it is vital to act in a considered and level-headed manner, and not to take draconian and extreme decisions and to accustom the public to the use of undemocratic means [\u2026].<\/span><\/p>\n In\u00a0South Africa<\/strong>, where a\u00a0state of disaster<\/a><\/strong><\/span>\u00a0has been in place since March 15th, the government amended a law to create a\u00a0COVID-19 Tracing Database<\/a><\/strong><\/span>. The database will include personal data of those who are infected or suspected to be infected of COVID-19, including their COVID-19 test results, as well as the details of those who have come or are suspected to have come into contact with them. The\u00a0Act<\/strong><\/span>\u00a0<\/a>authorizes the Director-General of Health to order telecom companies to disclose the location of infected or suspected to be infected person, without prior notice, as well as the location of those who were in contact or suspected to have been in contact with them, and to included all of this data in the\u00a0COVID-19 Tracing Database<\/strong><\/span><\/a>. The law was met with severe\u00a0backlash from civil society<\/strong><\/span><\/a>, and has since been amended twice. In a win for privacy, the last\u00a0amendment<\/strong><\/span><\/a>\u00a0<\/strong><\/span>deleted the provisions that obliged telecommunications companies to disclose location data for inclusion in that database.<\/span><\/p>\n Poland<\/strong>, which has been in a\u00a0state of emergency<\/strong><\/span><\/a>\u00a0since mid-March, has a track record of encroaching on the rule of law, even\u00a0triggering the EU\u2019s<\/strong><\/span><\/a>\u00a0legal process for addressing violations of European values. The EU Commission\u00a0has stated<\/a>\u00a0that the Polish judiciary is under \u201cthe political control of the ruling majority. In the absence of judicial independence, serious questions are raised about the effective application of EU law.\u201d Now with COVID-19, the Polish government\u00a0has also<\/strong> introduced<\/strong><\/span><\/a>\u00a0several COVID acts, providing new surveillance powers for the executive. Article 11 of the\u00a0COVID-19 act<\/a><\/strong><\/span>\u00a0obliges telecom operators to collect and give access to location data of people infected with COVID-19 or those under quarantine upon a simple request, as well as aggregate location data of an operator\u2019s clients. The new legislation states that these measures will remain in place until the pandemic has ended.<\/span><\/p>\n Slovakia<\/strong>\u00a0is another eastern European country that has expanded telecom companies\u2019 obligations to retain metadata during the crisis. Slovakia has been in a partial\u00a0state of emergency<\/strong><\/span><\/a>\u00a0since March 15th, during which several\u00a0amendments<\/a><\/strong><\/span>\u00a0to the country\u2019s telecommunications act were\u00a0fast tracked<\/a><\/strong><\/span>\u00a0through parliament. The amendments, which immediately caused\u00a0outrage<\/a><\/strong><\/span>, authorized national health authorities to obtain location data from telecommunications operators in the context of a pandemic. As in Poland, the\u00a0amended law<\/a><\/strong><\/span>\u00a0allows both for the retention of anonymized aggregate data, as well as for individual location data.\u00a0 After\u00a0 being\u00a0challenged<\/strong><\/span><\/a>\u00a0before the Slovakian Constitutional Court, these measures have recently been\u00a0suspende<\/strong><\/span>d<\/a>\u00a0due to their vagueness and insufficient safeguards against misuse.<\/span><\/p>\n Croatia\u2019s\u00a0<\/strong>government attempted to introduce similar, fast-tracked\u00a0amendments<\/a><\/strong><\/span>\u00a0to the country\u2019s electronic communications law. The bill would have authorized the exceptional processing of location data to \u201cprotect national and public safety,\u201d and would have obliged telecommunications operators to share the data with the Ministry of Health. As in other countries, the proposal was met with\u00a0outrage<\/a><\/strong><\/span>\u00a0among\u00a0civil society<\/strong><\/span><\/a>,\u00a0experts<\/a>,\u00a0and opposition<\/a><\/strong><\/span>, as\u00a0 more than forty civil society organizations signed onto\u00a0a letter<\/a><\/strong><\/span>\u00a0demanding the government to withdraw the bill. The criticism was eventually\u00a0successful<\/strong><\/span>,<\/a>\u00a0but the Croatian example underlines the wider pattern of states looking to expand at any opportunity new surveillance powers in the crisis,\u00a0in the Balkans<\/strong><\/span><\/a>\u00a0and beyond.<\/span><\/p>\n Bulgaria,\u00a0<\/strong>yet another Eastern European country in a\u00a0state of emergency<\/strong><\/span><\/a>, has passed an\u00a0emergency law<\/a><\/strong><\/span>, which included amendments to the country\u2019s\u00a0electronic communications act<\/strong><\/span><\/a>. The law now\u00a0obliges<\/a>\u00a0<\/strong><\/span>telecommunications companies to store and (upon request) provide metadata to competent authorities, including the police, to monitor citizens\u2019 compliance with quarantine measures. The law does not require requests to be authorized by courts but merely provides for a\u00a0after-the-fact judicial review process<\/a><\/strong><\/span>\u00a0which the country also uses when retaining data to\u00a0 prevent terrorist attacks. Not limited in time, the measures will\u00a0remain in force<\/a><\/strong><\/span>\u00a0even after the state of emergency has come to an end.\u00a0\u00a0Like Poland, Bulgaria has been showing\u00a0authoritarian tendencies<\/strong><\/span><\/a>\u00a0for several years, and this extension of the country\u2019s data retention regime, ushered in during the COVID crisis, may help\u00a0solidify autocracy<\/a><\/strong><\/span>. The pattern of European countries reaching for location data surveillance also pokes holes in the popular image of the European Union as particularly protective of the right to privacy.<\/span><\/p>\n South Korea<\/strong>, a country with experience fighting coronavirus outbreaks since the Middle East Respiratory Syndrome (MERS) epidemic in 2015, has dramatically\u00a0restricted the right to privacy<\/strong><\/span><\/a>\u00a0in the context of the pandemic. The Infectious Disease Control and Prevention Act\u00a0allows health officials<\/a><\/strong><\/span>\u00a0to obtain sensitive personal data on the infected and those suspected to be infected, as well as their contacts and those suspected to be in contact. Such data includes names, resident registration numbers, addresses, telephone numbers, prescriptions, medical treatment records, immigration control records, credit card records, transit card records, and CCTV recordings from third parties companies. Police can seize this personal data without consent of the data subjects and without any judicial oversight. The Act also allows health officials and administrators of municipalities to collect location data on the infected (or suspected to be infected) and their contacts (or suspected contacts) from telecommunications operators and location data providers (from cell site and GPS).<\/span><\/p>\n Location surveillance comes with a host of risks to citizens\u2019 privacy, freedom of expression and data protection rights. EFF has long been fighting against warrantless access to location data or blanket data retention mandates, and has called on governments to be more transparent on their surveillance programs. Especially now, during a major health crisis, in which the government has not shown the efficacy of location data about individuals, governments should be as transparent as possible about what data they are collecting for what purposes. Above all, the necessity and proportionality of any location data surveillance schemes must be demonstrated.<\/span><\/p>\n Katitza Rodriguez is EFF\u2019s international rights director. She concentrates on comparative policy of international privacy issues, with special emphasis on law enforcement, government surveillance, and cross border data flows. Her work in EFF\u2019s International Program also focuses on cybersecurity at the intersection of human rights. Katitza also manages EFF\u2019s growing Latin American programs. She was an advisor to the UN Internet Governance Forum (2009-2010). In 2018, CNET named Katitza<\/a><\/strong><\/span>\u00a0one of 20 most influential latinos in technology in the United States. In 2014, she was also named one of \u201cThe heroes in the fight to save the Internet<\/strong><\/span><\/a>\u201c.<\/em><\/span><\/p>\nIndividualized Location Tracking<\/h3>\n
COVID-inspired cell phone location surveillance around the globe<\/h3>\n
Conclusion<\/strong><\/h2>\n