The use of technology has become a world trend, with the argument of combating the new coronavirus and the pandemic it has generated. Although the application of technology may reinforce preestablished public health policies, it is worrying that it may also be used for mass surveillance purposes.
The newspaper Última Hora reported on March 24 that, according to interior minister Euclides Acevedo, the government is working on a mobile app that would monitor quarantine compliance. In addition to that, the minister said that drones will be used to monitor compliance with sanitary measures. A few days later, journalist Angélica Giménez reported on her Twitter account that the Paraguayan company “Datasystems” had donated a drone to the interior ministry, for the aerial monitoring of quarantine compliance:
In this article, we will focus on analyzing the practical use of these drones: will they serve the aforementioned purpose? Could their use lead to the violation of human rights? Do we have legal protection guarantees? Before trying to answer these questions, it is important to understand what a drone is and how its uses have evolved historically.
What is a drone? Historical overview
A drone is an unmanned flying vehicle, which means that whoever pilots it does not fly inside but rather controls it remotely. It was initially created for military purposes, when the United States Army and Navy began its development in collaboration with different private companies. During the late 20th century, drones were mainly used for surveillance purposes. In the Gulf War, for example, they were used to broadcast images from the conflict zone.
In 1999 the United States began developing drones with the ability to launch missiles, using them systematically in the so-called “war on terror”. Hence, its use has been associated with the term “targeted killing”, where drones with missile capability are used to attack groups or individuals identified as terrorists. An example of this is the case of Anwar al-Awlaki, flagged by the United States as a member of Al-Qaeda, who was assassinated by a drone strike which also killed other people around him.
In an article published on the English newspaper The Guardian, former imagery and geospatial analyst for the US drone program Heather Linebaugh recounts the traumatic experiences she and her colleagues went through when they were in charge of analyzing these targeted attacks. Linebaugh points out that politicians who proclaim the benefits of using drones have no idea how they work or what they can generate. She says that the public needs to understand that a video provided by a drone is not clear enough to detect if someone is carrying a weapon, making it extremely difficult to identify with complete certainty if it is a legitimate target. She explains that many times the videos were so pixelated that it was not possible to differentiate a shovel from a weapon. She concludes by saying that every day she ended up wondering weather they killed the right person, put the wrong people in danger, or destroyed the lives of innocents. We bring forth this case because we want to highlight the dangers of this type of technology, beyond the fact that we oppose the military use of drones in all cases.
Currently, the use of drones is not limited to war or armed conflict areas, serving a wide variety of purposes both in the private and public sectors. Drones have the ability to carry cameras, infrared sensors, measurement devices or radars. Thus, architects or construction companies use them to inspect pipelines or assess progress on a construction site; photographers use them to capture landscapes or large crowds; police use them to monitor demonstrations or borders, among many other use cases.
Based on their immense capabilities, the use of drones moves constantly around the fine line between a positive contribution to specific issues and the violation of human rights. It can help solve problems as in the case of Thuringia, Germany, where a drone provided images of over 7,000 acres of a forest hit by a storm, enabling the mapping of damaged trees; on the other hand, it can lead to the violation of fundamental rights, such as the rights to privacy and freedom of expression. This is largely due to the lack of a robust legal framework that addresses the capabilities of the technology and the potential scenarios for its use.
In an article published on Spiegel International, former German federal judge Wolfgang Nešković refers to the use of drones as “the last piece of the puzzle for total technological surveillance”.
Drones in Paraguay: did their use start with the pandemic?
In the Última Hora article mentioned at the beginning of this post, the interior minister said that they are “asking the wealthiest to lend us their drones because we will have to resort to technology to control those that do not comply with sanitary provisions”. Two questions arise from this statement: if the government has to borrow drones, does it mean that they don’t have any? And if their use is being justified by the need to control quarantine compliance, would they be used exclusively in that context?
On the first point, it is pertinent to remember that last year the interior ministry awarded an ITT for 150 million guaraníes to the company Winner SRL for the purchase of a drone. Former interior minister Juan Ernesto Villamayor indicated that the objective of the tender was to get a drone to be used in demonstrations, evictions, raids and sports events. The same article states that this was not the first drone purchased by the government, but only the first one purchased through a tender. This leads us to conclude that the government already had its own drones.
Therefore, regarding the second question, we can reason that if the government already had drones before the pandemic, then their use is not limited to it. In fact, both ministers agree that the objective of the use of drones is monitoring citizens, whether at demonstrations, sporting events or during the pandemic. Here emerges one of the main problems of the current situation: the surveillance alluded to by Villamayor was limited to specific areas or events, that is, citizens would only be observed at a certain place and within a certain period of time (for example, during a soccer match). Once the event was over, people would not be monitored on the way to their homes or at any stop they would decide to make. However, the surveillance in the context of the pandemic has no space or time limitations, given that non-compliance with health provisions could occur anywhere and anytime. Non-compliance could mean going for a walk out on the street, visiting a friend or playing a team sport. This means that to ensure compliance with social isolation measures, constant surveillance should be carried out throughout the territory.
This is where the danger of the current context lies: before the pandemic of COVID-19 various forms of surveillance and control were already being implemented through the use of technology, but in a context of crisis this can be deepened and legitimized with exception mechanisms such as emergency laws. It is worrying that positions that point to a “greater good”, such as mitigating the current health risk, are being used to justify the application of surveillance tools. Even more so when we do not have a legal framework that conforms to the international standards in this area. If the use of drones didn’t surge as a result of this pandemic, we may ask ourselves: could this situation open the doors for its use in a systematic and permanent way?
Rights at stake: international standards
As stated in the Spiegel International article mentioned above, the use of drones has become a constitutional nightmare, as it is clearing the way for unprecedented surveillance. Its use as a State surveillance tool can result in the violation of human rights such as the right to privacy, freedom of expression, free movement and demonstration, among others. These are rights recognized in both national and international regulations.
Article 33 of the Constitution of Paraguay recognizes and guarantees the right to privacy. Likewise, article 11 of the American Convention on Human Rights (ratified by Paraguay on August 24, 1989) protects individuals from “arbitrary or abusive interference with his private life, his family, his home, or his correspondence” and recognizes that “everyone has the right to the protection of the law against such interference or attacks”. Similarly, article 17 of the International Covenant on Civil and Political Rights protects individuals from “unlawful interference with his privacy, family, home or correspondence”.
The rights to privacy and to freedom of expression are related rights, and the right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. This can be clearly seen in everyday situations: do we behave freely when we know that we are being watched? Can we honestly say what we think if we know that someone else is listening to us? We could apply the same kind of reasoning to other situations with different degrees of need for privacy and the answer would still be the same.
Regarding the State application of surveillance measures, General Observation 16 of the United Nations Human Rights Committee says that “the pertinent legislation must specify in detail the precise circumstances in which such interferences can be allowed” and “should only be done by the authority designated by law, and in each particular case”. Furthermore, the arbitrary collection of personal information by the government constitutes a highly intrusive act that “violates the rights to privacy and freedom of expression and may contradict the principles of a democratic society”.
In the same sense and through a joint declaration, the UN Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression and the Special Rapporteur for Freedom of Expression of the IACHR said that “surveillance should be an option for governments only under the strictest rules in the context of compliance with the law, that is, that they be publicly available and adopted and operating on principles of necessity and proportionality and with close judicial supervision”. They also stated that “the law must establish limits regarding the nature, scope and duration of this type of measure, the reasons for ordering it, the competent authorities to authorize, execute and supervise it and the legal mechanisms for its implementation”.
From the aforementioned, we see that both international regulations and international organizations agree on the need for a robust legislation which limits State surveillance actions, in order to protect the human rights of its citizens. In Paraguay, we do not have a specific framework that regulates these issues. The result, as we can see, is the application of technologies with a strong potential to violate rights and an absence of defense tools for citizens. As mentioned throughout this article, the current context presents a risk of increased surveillance during the pandemic, and its permanence after it.
It is important to clarify that the lack of specific regulations does not enable the State to violate fundamental rights, since the government must comply with the principles of international law stated in international treaties and conventions it has signed. Principles such as those of necessity, legality, proportionality, adequacy and transparency provide the basis for evaluating whether State’s surveillance practices conform to international human rights standards.
International laws on human rights provide for the possibility that, under some extraordinary circumstance, the State may take measures that limit certain rights, but it must do so in strict accordance with the aforementioned principles, for a limited time and with a scope defined prior to the application of the measures. Therefore, in the specific case of the use of drones in the context of the pandemic, the State must comply with the following principles:
Legality: Any limitation to human rights must be prescribed by law.
Legitimate aim: Law should only permit surveillance to achieve a legitimate aim that corresponds to a predominantly important legal interest that is necessary in a democratic society.
Necessity: Surveillance must be limited to what is strictly and demonstrably necessary to achieve a legitimate aim. It must only be conducted when it is the only means of achieving a legitimate aim, or, when there are multiple means, it is the means least likely to infringe upon human rights.
Proportionality: Surveillance will be confined to that which is relevant to the specific threat to a legitimate aim alleged, under the premise that its application does not undermine the essence of the right to privacy or of fundamental freedoms.
Transparency: States should provide individuals with sufficient information to enable them to fully comprehend the scope, nature, and application of the laws permitting surveillance.
For all the above, States should only implement the use of drones when there are no other means that can achieve the desired objective. To make such a decision, there should be prior study analyzing the impact that the measure would have on human rights, and the whole process must be made transparent to the public. These principles must be followed for each step of the process: the decision to monitor, the means chosen and the requirements for data storage and access to these data. Regarding this, and according to the tweet of journalist Angélica Giménez, given that the drone was donated by a private company the government should at least inform how the data collected will be protected, who will have access to it and for how long it will be stored.
Did the State comply with the aforementioned principles? Is drone deployment the only way to control quarantine compliance? Have other less intrusive means been discussed? And the most important question: will this surveillance transcend the pandemic?
Let’s defend our rights
Yuval Harari said in an article for the Financial Times that “if we are not careful, the epidemic might mark an important watershed in the history of surveillance”. Times of crisis such as the one we’re going through enable an increase in surveillance and allow the application of invasive technologies under the pretext of the “common good”, without offering analysis that validate the decisions.
We should not try to evaluate the false dichotomy of privacy versus health, since they are not incompatible rights, nor do they cancel each other out. The health issue must be approached with a set of public policies on the subject, with the guarantee of access to medical care and medicines, and with full State social security; not with surveillance. The current situation shows that State precariousness predates the current crisis and highlights the need for strengthening public institutions from the perspective of human rights.
Paraphrasing Harari, in this time of crisis there is one particularly important choice to make: totalitarian surveillance or citizen empowerment. Let us choose empowering ourselves and let us make sure that this choice transcends the pandemic.