Litigating COVID-19 surveillance: Stories across Jurisdictions

By: Sonny Zulhuda

This post is a quick interim note I made after attending one of so many interesting sessions of RightsCon 2021 Summit on 8th June 2021, entitled: “Litigating COVID-19: contact tracing apps, immunity passports, disinformation, and more”. This was a very enlightening session so close to my current concern and research areas, i.e. Pandemic and Data Protection.

Speaking in the sessions were some activists from India, Israel, Russia, and Japan. Here is the excerpt from the event website about this session:

“Since the start of the COVID-19 pandemic, governments around the world have been partnering with tech companies in attempts to fight the pandemic with the help of new technologies, such as contact tracing apps, immunity passports, and digital ID systems. This tech solutionism has significantly contributed to growing mass surveillance disguised as concerns for public safety. Simultaneously, disinformation (and governments’ disproportionate methods of fighting it), discrimination, and internet shutdowns, have also exacerbated the harms of the pandemic and hit the most vulnerable communities the hardest. This session convenes digital rights litigators who have been at the forefront of litigating COVID-19 human rights violations in their jurisdictions and those who are interested in bringing future cases forward. We will discuss several case studies from India, Israel and Russia and explore the opportunities of collaborations in potential COVID-19 litigations.”

This session was hosted by AccessNow. Speaking in the session were Dan Yakir (Chief Legal Counsel, Association for Civil Rights in Israel); Sarkis Darbinyan (Founder, RosKomSvoboda); Vrinda Bhandari (Of Counsel, Internet Freedom Foundation); Prasanth Sugathan (Legal Director, Software Freedom Law Center, India (SLFC.in)); Hinako Sugiyama (Legal Fellow, Access Now); and Natalia Krapiva (Tech-Legal Counsel, Access Now).

RightsCon Summit is an annual conference centred at the big theme of human rights in the digital age. Lots of themes came to life in this Summit, from privacy to right to information, from digital divide to content moderation, and from internet shutdown to artificial intelligence. I was fortunate to have attended the Summit physically in 2018 in Toronto, Canada, thus was able to sense the excitement first hand. Back then, I was presenting my research work with my colleagues from the Citizen Lab, Canada.

In this session of the 2021 Virtual Summit, there were notably three cases being spoken of as examples where some form of controversial pandemic-related surveillance came to litigation and criticism: India, Israel and Russia. The Indian case is still not settled, while the Israeli case was decided in favour of the complainant who alleged the intrusiveness of the initiative.

As for India, I share the relevant piece of info here:

Aarogya Setu: Why India’s Covid-19 contact tracing app is controversial
https://www.bbc.com/news/world-asia-india-52659520

Here is the one from Israel:

Israeli Supreme Court bans unlimited COVID-19 mobile phone tracking
https://www.reuters.com/article/us-health-coronavirus-israel-surveillanc-idUSKCN2AT279

And lastly, this is about what happened in Russia:

Russian Federation: New rules on remote work
https://www.globalcompliancenews.com/2021/01/11/russian-federation-new-rules-on-remote-work-09122020/

Russian Federation: Government Agrees with Lowering Threshold for Personal Data Protection during Coronavirus Pandemic
https://www.loc.gov/law/foreign-news/article/russian-federation-government-agrees-with-lowering-threshold-for-personal-data-protection-during-coronavirus-pandemic/

Responding to the discussion online, one participant Selasi Eli had this to say:

Thank you for this timely discussion, the challenges highlighted sound very familiar from the Kenyan perspective. Although not directly related to COVID-19, there was a problematic policy on mandatory Digital ID registration that was challenged in the courts.

Then, Nicki Gladstone from AccessNow also added this info:

Not a question but an appeal to all those concerned about the scale-up of digital surveillance in the name of health to get engaged in the international pandemic treaty discussions. There’s a push afoot among member states to create a new global framework for health, which would probably include provisions for even more digital data-gathering to prevent the next pandemic. Here’s a commentary from over 30 international human rights experts, including AI, HRW, 4 UN Special rapporteurs, and others: https://blogs.bmj.com/bmj/2021/05/10/an-international-pandemic-treaty-must-centre-on-human-rights/

More to follow, and till then!

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