Time and again, governments have used crises to expand their power, and often their intrusion into citizens’ lives. The COVID-19 pandemic has seen this pattern play out on a huge scale. From deploying drones or ankle monitors to enforce quarantine orders to proposals to use face recognition or thermal imaging cameras for monitoring public spaces, governments around the world have been adopting intrusive measures in their quest to contain the pandemic.
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—or sometimes simply seized—without making a significant contribution to containing COVID-19. Despite the lack of evidence to show the effectiveness of location data to stop the spread of the virus, a number of countries’ 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 declared such mandates illegal under EU law.
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’s no justification for this intrusion on people’s fundamental freedoms in the first place.
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—making it even less transparent and democratically legitimate than usual. Governments may use the urgency of the crisis to erode limits on the ways people’s 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.
Attempts at rapid expansions of government location surveillance authority have come to light in at least seven countries.