UN - United Nations

10/29/2020 | Press release | Distributed by Public on 10/29/2020 16:05

Third Committee Delegates Debate Acceptable Limits to Privacy Rights, Personal Data Use During Pandemic, as Expert Warns Against ‘Omni-Present’ Surveillance

Personal data has become a tool for Governments, scientists and companies in the fight against COVID‑19, the Special Rapporteur on the right to privacy told the Third Committee (Social, Humanitarian and Cultural) today, stressing that any increased technology use for surveillance or contact tracing must respect human rights and return to pre-pandemic norms once the virus risk has subsided.

'Technology-driven contact tracing has become, in some places around the world, disturbingly close to incessant and omnipresent surveillance,' said Joseph Cannataci, one of three experts briefing the Committee on broad questions of human rights. 'Such surveillance is not the panacea for the COVID‑19 pandemic.' He said the main privacy risk is the employment of non-consensual methods - such as hybrid surveillance - which can be used for other purposes.

During the interactive dialogue, China's representative rejected the illegal surveillance of communications and collection of personal data, particularly the 'large-scale electronic surveillance' carried out by the United States and other countries. '[The Federal Bureau of Investigation] and [Central Intelligence Agency] have been collecting and searching people's international emails or phone calls,' he asserted, condemning such behaviour as a 'systematic violation of people's right to privacy.'

Meanwhile, the representative of the Russian Federation welcomed the unprecedented measures taken by national authorities to slow the spread of the virus. The creation of track and trace systems has revived questions around the limits of acceptable invasion into private life in the name of public safety. 'The right to privacy must not be absolute,' he said. 'The interest of the society should prevail.'

Later in the day, Tlaleng Mofokeng, Special Rapporteur on the right to health, underlined that factors such as public health policy, leadership, structural discrimination and socioeconomic inequalities determine the virus' impact, more than biological factors. 'As a black woman myself, I understand that people are not intrinsically vulnerable, but that these vulnerabilities are rather brought by the obstacles they face in the social, economic and political contexts they live in,' she said.

Rounding out the day's briefings, Victor Madrigal-Borloz, Independent Expert on sexual orientation and gender identity, said responses to the pandemic have reproduced entrenched patterns of discrimination, social exclusion and violence. In following recommendations to stay at home, lesbian, gay, transsexual and intersex (LGBTI) persons are often forced to endure prolonged exposure to unaccepting family members, which aggravates rates of domestic violence. He called on States to support the work of LGBTI civil society and human rights defenders, and to provide protection from violence and discrimination during the pandemic.

The Committee will reconvene at 3 p.m. on Friday, 29 October, to continue its discussion of promotion and protection of human rights.

Interactive Dialogues - Right to Privacy

As the Committee continued its broad focus on the promotion and protection of human rights, with a half day of interactive dialogues that featured presentations by: Joseph Cannataci, Special Rapporteur on the right to privacy; Tlaleng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and Victor Madrigal-Borloz, Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity.

Mr. CANNATACI said the pandemic has highlighted the significance of privacy as a human right, stressing that 'the fight against the virus has seen individuals' data become a key tool for Governments, scientists and others - including corporations.' Public health emergencies have always provided a legitimate basis for the processing of data. While the 'privacy-intrusive' practice of contact tracing can be classified as 'a necessary public health measure', he expressed concern over reports of personal and health data, combined with technology, being used to exert control over citizens - possibly to little public health effect, which raises questions over their necessity and proportionality. There is sufficient guidance available for any country collecting data as part of its COVID‑19 response, which enables its use to be 'demonstrably lawful, necessary and proportionate in a democratic society', he said, adding that the World Health Organization (WHO) provides guidance in this area. Regarding the use of technology in pandemic responses, he said the main privacy risk lies in the employment of non-consensual methods - such as hybrid surveillance - which can be used for other purposes. 'Technology-driven contact tracing has become disturbingly close to incessant and omnipresent surveillance,' he warned. 'Such surveillance is not the panacea for the COVID‑19 pandemic.'

In the ensuing interactive dialogue, delegates underscored that any technology use for surveillance or contact tracing in response to the pandemic must respect human rights, with the representative of the United Kingdom pointing to her country's National Health Service Test and Trace system, which is committed to the highest ethical and data governance standards. She asked for the Special Rapporteur's view on the risk that some States may continue to enact high levels of surveillance on their populations, and not return to pre-pandemic norms once the COVID‑19 risk has subsided.

In a similar vein, an observer for the European Union called for greater attention to the pandemic's impact on all human rights, democracy and the rule of law, insisting that COVID‑19 not be used as a pretext to unlawfully limit fundamental freedoms, civic space or respect for the rule of law. He asked how States can ensure that their pandemic responses protect the privacy rights of people in vulnerable situations, who already feel the disproportionate impact of COVID‑19.

The representative of Mexico said international human rights law allows for some restrictions in specific circumstances - in particular, those that must respond to urgent public or social needs with the aim of protecting public health. Secondly, restrictions must be limited in time, revised, as minimally restrictive as possible and not applied in a discriminatory manner. Measures taken to stop the pandemic must not be used to marginalize specific groups, or as an excuse to violate the right to privacy.

Meanwhile, the representative of China underscored that illegal and arbitrary surveillance of communications and collection of personal data not only violates citizens' right to privacy but also damages their freedom of speech, association and assembly. Large-scale electronic surveillance carried out by the United States and other countries not only violates the human rights of their own citizens but also tramples on those of other people. Such behaviour amounts to a gross violation of sovereignty and breach of the Charter of the United Nations. 'FBI and CIA have been collecting and searching people's international emails or phone calls,' he said, 'a systematic violation of people's right to privacy.' He urged the United States 'to stop conducting such large-scale electronic surveillance globally.'

The representative of the Russian Federation said the unprecedented measures taken by national authorities have played an enormous role in slowing the spread of the virus. The creation of track and trace systems has revived questions around the limits of acceptable invasion into private life in the name of public safety. 'The right to privacy must not be absolute,' he said. 'Rather, the interest of the society should prevail.' It should only be deemed acceptable to have access to personal information when this adheres to national legislation. In order to protect public health, it is extremely important that technical assistance is provided to States from international authorities and leading tech companies.

Mr. CANNATACI, in response, pointed to a number of complex issues that must be studied further and about which he will provide updates in June 2021. He recalled that several companies are offering surveillance solutions to Governments, some of which entail 'less privacy or human rights protection than others'. It is relatively cheap for Governments to buy those solutions, and he cautioned against the temptation to continue their use after the pandemic. He called on China to accept his invitation to visit and assess first-hand whether the laws mentioned today by China's representative are working well in practice.

Also speaking were representatives of Malta, Qatar, Brazil and Germany.

Physical and Mental Health

Ms. MOFOKENG introduced the final report by her predecessor Dainius Pūras (document A/75/163), which outlines right-to-health principles, addressing power imbalances, corruption, and the overemphasis of the biomedical paradigm. It also articulates how these factors have contributed to the spread and impact of the COVID‑19 pandemic. The report establishes that factors such as public health policy, leadership, structural discrimination and socioeconomic inequalities determine the virus' impact, more than biological factors. All human rights must be fully embraced for the right to physical and mental health to be fully realized. She went on to outline her vision for her mandate, which will foreground the principle of dignity within the right to health. 'As a black woman myself, I understand that people are not intrinsically vulnerable, but that these vulnerabilities are rather brought by the obstacles they face in the social, economic and political contexts they live in.' Over the next three years, she will focus on the negative impact of coloniality, racism, the oppressive structures woven into the global health architecture, and on identifying the changes required to remove the barriers that make people vulnerable to right-to-health violations. Moreover, as a practitioner on sexual and reproductive health, she will bring a gender perspective to such work. She will examine the impact of criminalization and the need for zero discrimination when addressing such issues as safe abortions and sex work. She will also focus on the concerning lack of support for survivors of gender-based violence and femicide in many countries. Health funding is another priority issue, she said, and she will examine the overreliance on philanthropy and foreign aid in developing countries for essential health care services, particularly for reproductive and sexual health.

When the floor was opened for commentary, an observer for the European Union said the pandemic and measures taken to tackle it have led to a spike in global anxiety, as have the related economic downturn and increase in domestic violence. She cited a recent WHO report, which pointed out that the pandemic has interrupted critical mental health services in 93 per cent of countries, while demand for these services is increasing, and asked the Special Rapporteur about the most pressing issue for her mandate.

The representative of the Republic of Korea, speaking for the Group of Friends of Solidarity for Global Health Security, stressed the need for multilateral collaboration, innovation and data sharing to tackle the pandemic, and asked how global partnerships can be fostered to advance physical and mental health worldwide.

Meanwhile, the representative of China outlined measures his country has taken to guarantee its citizens' rights to social development, as well as its efforts to foster international cooperation to defeat the pandemic, including its timely sharing of the SARS‑CoV‑2 gene sequence and successful treatments. China will continue to fulfil its international obligation until the pandemic is eventually defeated.

The representative of El Salvador said the rights of vulnerable people must be upheld and stressed that the global solution to strengthening physical and mental health is international solidarity and cooperation, not misdirected nationalist agendas.

The representative of the Russian Federation pointed out that his country has developed two vaccines, the second of which it plans to distribute in January 2021.

Ms. MOFOKENG, responding briefly, said the pandemic revealed that the world was never prepared for such a humanitarian crisis, even at its best, with many countries taking a long time to secure access to testing kits and personal protective equipment. Some countries continue to grapple with these issues, and access to therapeutics remains concerning. However, 'pockets of excellence' around the world point to opportunities to improve the global multilateral response. The pandemic cannot be eradicated without good water and sanitation, she said, underscoring the importance of preserving the right to accessing them. She expressed concern about the inadequate mental health support for children, as well as insufficient protections for front-line health care workers and essential workers - including public transportation and sanitation workers, many of whom are women from disadvantaged sectors of society. She touched on the broader priorities of her mandate, including a shift from coercive to compassionate treatment and enhancing health care access in States where it is hindered. Calling on Governments to remove all barriers to sharing data and intellectual property in the search for a vaccine, she stressed that 'in order to save countries and economies, we have to save humans first.'

Also speaking were representatives of Qatar, Algeria and Cuba.

Sexual Orientation and Gender Identity

Mr. MADRIGAL-BORLOZ presented his report (document A/75/258) on violence and discrimination based on sexual orientation and gender identity during the COVID‑19 pandemic. The response to the pandemic reproduces and exacerbates the patterns of discrimination, social exclusion and violence already identified in his previous work. While following recommendations to stay at home, LGBTI persons are forced to endure prolonged exposure to unaccepting family members, which aggravates rates of domestic violence, physical and emotional abuse. The reallocation of health resources, meanwhile, has also intensified shortages of antiretrovirals for those living with HIV and impacted the ability of trans men and women to receive hormonal therapy or gender-affirming care. The pandemic has created a context conducive to increased persecution: Hate speech inciting violence against LGBTI persons has been on the rise, while some States have also enacted measures that intentionally target LGBTI persons under the guise of public health.

He said the crafting of effective solutions must acknowledge that certain persons, communities or populations are at a disadvantage during the pandemic. As such, he has issued a set of guidelines to ensure that measures designed to respond and recover from COVID‑19 are free from violence and discrimination based on sexual orientation and gender identity. States must ensure they support the work of LGBTI civil society and human rights defenders, and provide protection from violence and discrimination in the pandemic context. Stressing that LGBTI persons must be represented in the design, implementation and evaluation of COVID‑19 measures, he called on States to address the particular concerns of LGBTI persons in response and recovery plans.

When the floor opened for comments and questions, several delegates drew attention to the violence and discrimination perpetrated against LGBTI persons during the pandemic, with an observer for the European Union underscoring that COVID‑19 mitigation measures have had a disproportionate adverse impact on LGBTI persons and exacerbated patterns of social exclusion. The COVID response must be free from such behaviour, including on the basis of sexual orientation and gender identity.

In a similar vein, the representative of Japan said COVID‑19 is causing a human security crisis. Countermeasures must be taken in accordance with international human rights law and must not target LGBTI persons under the guise of public health. The representative of Norway, speaking for the Nordic-Baltic countries, said lockdowns and other restrictions have led to increased poverty, a lack of vital health care, social isolation, abuse and violence. The Office of the United Nations High Commissioner for Human Rights (OHCHR) also reports sharp trends in reprisals against LGBTI persons and rights defenders cooperating with the United Nations. She expressed alarm that some Government measures have intentionally targeted or persecuted LGBTI persons, and she asked what immediate steps Governments can take to protect LGBTI persons in these instances.

Several delegates highlighted national measures to combat LGBTI discrimination. The representative of Ireland, associating himself with the European Union, said his country now has in place national inclusion strategies for LGBTI persons, and importantly, a special strategy for young people that aims to improve the quality of life of LGBTI persons. The representative of New Zealand said that her country has recently elected one of the most 'rainbow' parliaments in the world, with 10 per cent of its members identifying as LGBTI. The representative of Thailand cited the Government's relief packages to help those facing economic hardship during the pandemic, including LGBTI persons. Social and gender norms should be inclusive, as should the legal infrastructure, she said, noting that a draft bill approved in July recognizes same-sex partnerships and now must be ratified by Parliament.

Others asked the Independent Expert to share his expertise on good practices. The representative of Mexico, speaking for the United Nations LGBTI Core Group, said she was disturbed that LGBTI persons have been blamed for the pandemic and asked for recommendations on how to articulate policies that are inclusive of LGBTI senior citizens and young people. The representative of Israel asked about good practices for fighting discrimination against LGBTI and gender-diverse persons during the pandemic.

On the topic of data collection, the representative of the United States inquired about strategies countries can implement to improve the gathering of information about violence against LGBTI persons, many of whom have reported restrictions on their freedom of association and right to peaceful assembly during the pandemic. Comprehensive and accurate data collection is essential to formulating policy and holding officials accountable for behaviour inconsistent with the equal rights of LGBTI persons. She expressed concern that such data is lacking - in both national contexts and in some United Nations reporting.

Mr. MADRIGAL-BORLOZ underscored his belief that the representatives of Thailand and New Zealand are correct in recognizing that this work is part of a comprehensive and integrated progress. Data must be collected routinely to understand how violence and discrimination manifest against LGBTI persons. It is impossible for a State to seriously argue that LGBTI persons do not exist everywhere, he said. It must be acknowledged that human rights work is part of a sustained response to the pandemic.

Impunity must be eliminated at all levels when it manifests itself, he said, stressing that violence against LGBTI persons runs from high-level political and religious discourse and trickles down to the actions of public policymakers, justice providers and legislators. There must be political messaging around the importance of a life free from violence and discrimination for LGBTI persons. The propagation of hate speech by religious or political authorities must not be tolerated. On data collection, he said he issued a report outlining standards to guide these efforts. It must be understood that trust-building is a long-term process. It is not easy for LGBTI persons to have trust in State agents. States have a duty to acknowledge and 'embrace what it takes' to build trust. He called for a world free of criminalization for LGBTI persons by 2030 and for a global ban on conversion therapy, which is cruel, inhumane and degrading, and therefore prohibited under international human rights law.

Also speaking were representatives of Spain, United Kingdom, France, Malta, Germany, Argentina, Belgium, the Netherlands, Czech Republic, Canada, Italy and Liechtenstein.