Surveillance and COVID-19: Quis custodiet ipsos custodes?

How can Western democratic states use surveillance technology to monitor who has COVID-19 and still respect privacy laws?

This contribution was published on The Hill Times on April 27, 2020

OTTAWA, CANADA — I confess to being a fan of the British TV series MI5 which is not strangely about… MI5, the British Security Service (BSS). This intelligence agency’s closest equivalent in this country is CSIS, one of my former employers, although perfect analogies are rare in the spy business for many reasons (legislation, history and culture to name but three).

Yes, I know it is fiction but the show is quite good. Furthermore, as my friends in the UK who used to work for MI5 tell me, it does a pretty good job at accuracy as well, right down to the strained relationship with its crosstown ‘partner’ MI6 (the British Secret Intelligence Service of James Bond fame, although his movies are much less tied to the real world).

One of the aspects of ‘doing’ intelligence in the UK is the incredibly important benefit of CCTV cameras. London especially, but I imagine other parts of the country as well, are blanketed with them, affording spy services a wealth of data to use in the furtherance of their investigations. In episode after episode of MI5 the members of the service regularly get access to near real-time images and videos which allows them to catch the bad guys.

Governments around the world are struggling to deal with the novel coronavirus: what if some of the cures raise equally challenging issues?

We in Canada do not have anything even close to such a system and I am not sure Canadians want one. There is a certain level of distrust in the state at any given time and average citizens are right to ask what the government would do with this information, let alone their ability to keep it safe.

Leveraging cellphone to monitor who has the virus

What, then, to make of an idea put forward by the Trudeau government to use cellphone data to enforce quarantine of those affected by the novel coronavirus (COVID-19)?

In this Canada would not be alone. Other countries are leveraging cellphone or other data to monitor who has the virus. China does it. Iceland does it. Singapore and Taiwan are doing it. So is South Korea. And Pakistan. These states appear to have concluded that the pandemic is a very real national security and public safety threat (the two are NOT synonymous) and that severe measures must be implemented.

Not surprisingly, some civil liberties advocates are up in arms (IMHO some of these are always up in arms about something or other, and not always realistically). They warn of the abuse of personal data, asking that if a state is to monitor those who are ill with COVID-19 it must at least anonymise the data (but then how do we know who is a carrier??).

There is a tendency for states to not give back extraordinary powers once they are granted and for some to use those powers in the furtherance of parochial rather than national interests.

Errol Mendes of the University of Ottawa has noted that “the danger is that supposedly democratic governments that get total control of large parts of society as a result of measures to contain COVID-19 may be tempted to do the same with the key democratic institutions.” His concerns are real in a country like Hungary whose leader, Viktor Orban, has already taken steps to undermine that nation’s democratic system.

What then is the answer? Can governments monitor and collect data on the spread of the virus to help ‘flatten the curve’? Doing nothing does not seem to be an option: hence all the ideas being floated to get this country back to as near a state or normal as possible.

Making sure our spies don’t go ‘rogue’

I would like to think that we can use the technology available to us to do this effectively and within both the law and Canadians’ sense of privacy. One thing is certain however: no one has the right to pretend they are not affected by COVID-19 or ignore rules that mandate self-isolation or quarantining in the interests of national health. The tricky part is how to do this well.

There is a tendency for states to not give back extraordinary powers once they are granted and for some to use those powers in the furtherance of parochial rather than national interests.

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Perhaps our existing security services can provide some guidance. CSIS, for example, has an act that both allows and restricts what it can do. It has to go to court, for instance, to intercept communications under warrant. It is subject to review agencies. All this together serves as a necessary oversight so that our spies don’t go ‘rogue’.

Is some rubric possible for this time of pandemic? There should be a way to do this properly. Let’s hope we can figure this out.

As an aside, the Canadian Internet Registration Authority and the Communications Security Establishment (CSE) have teamed up on the CIRA-Canadian Shield, a protected domain name system (DNS) service that prevents Canadians from connecting to malicious websites that might infect their devices and steal their personal information. This is seen as even more necessary than normal insofar as COVID-19 is opening the door to all kinds of malicious online actors. And, they are making it free for all Canadians! Now that’s how our nation’s spies can help during the pandemic.

In this time of COVID-19, we have enough to worry about without freaking out about terrorism!

Even ISIS is afraid of COVID-19, suggesting we may not see an uptick in attacks seeking to take advantage of a possible skeleton crew in security and intelligence agencies.

The COVID-19 situation is rapidly evolving and governments are having a hard time keeping up with strategies to respond and react effectively to keep their citizenry safe. Read more about the ongoing COVID-19 crisis and its ties with terrorism.

See our ongoing COVID-19 coverage:
Phil Gurski
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