“However, reconceptualizing fundamental rights is a serious matter. As such, we must guard against measures such as these continuing to shape our civic life, politics, and economies—even long after this pandemic has passed.”
s the Coronavirus spreads throughout the world, governments have been enacting measures that may have once been considered unacceptable expansions of State power. These measures include curfews, mass surveillance, the confiscation of private goods, and requests for indeterminate detentions without trial. Although harsh, these measures have been deemed as necessary moves in the effort to slow the spread of the virus. But should we not be wary of some of the more intrusive measures? The answer is a definite “Yes.” If we are not careful and governments keep outreaching in their powers, we may not recognize the threat this poses to our civil liberties until it is too late.
The Narrowing Gap between Democracies and Dictatorships
A “police state” is characterized by the extensive surveillance of its citizens, as well as by the overwhelming presence of the State in individuals’ lives. Citizens living in a police state may experience restrictions on their mobility—and on their freedom to express their ideas. Dictatorships are normally police states. As such, it is not surprising when China puts millions of its citizens under draconian control. The true surprise, then, arises when—in the blink of an eye—liberal democracies with a long history of respecting individual rights grant to their governments expansive powers.
For instance, while Germany asked domestic car manufacturers to consider producing medical equipment such as masks and ventilators, the U.S. government ordered General Motors to produce ventilators under the Defense Production Act, a potent Korean War-era statute that allows the federal government to require companies to manufacture materials that are in short supply. Something analogous happened in Brazil, a country that has actually been struggling to strengthen its property rights protections to attract investments. The richest state in the nation, São Paulo, confiscated 500,000 masks from a manufacturer under a brand new federal law that allows governors to seize private goods and services to respond to the Coronavirus.
Coercion, however—as history proves—does more harm than good, undermining individual responsibility, as well as a genuine sense of community. This is true even if in the short-term, these measures appear necessary. Respecting individual liberty is always the best way to promote the welfare of society, and intrusive measures that seem useful today will surely make society worse off in the long run.
When Our Data become Their Data
At least since Machiavelli, Western societies have been debating the optimal balance between certain principles and practical politics. Considering how contagious the Coronavirus is, tracking people’s movements can appear critical, but does this justify emergent “Community Mobility Reports”?
The United Kingdom, Germany, and Italy are among the nations contemplating using individual smartphone location data in the fight against the virus. Google is also intending to release the location data of users to help fight the pandemic. And, Hong Kong has more aggressive plans. Its authorities have been placing electronic wristbands on arriving passengers to enforce quarantines. Previously, electronic tagging was used for people fulfilling their bail or probation requirements. Now, it can be used on people who cough.
One may argue that people have no reasonable expectation of privacy in their movements from one place to another. However, recall the United States Supreme Court’s ruling in United States v. Jones 132 S. CT. 945 (2012):
“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. […] Takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on […]. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”
Nowadays, tracking people’s movements might help public health officials’ response to the coronavirus pandemic. But what happens tomorrow?
No Guarantee of a Step Back
It might be argued that extraordinary times call for extraordinary measures. In this line of thinking, governments ought to bear powers proportional to the challenges they are facing. These new measures, nevertheless, are presented as strictly temporary and slated to be discontinued when the crisis ends. Unfortunately, however, there is no guarantee that these powers will be rescinded once the threat passes.
As the Brazilian author João Féder argued, every major step forward on the part of the State takes place in times of public misery and is couched in a great need for individuals’ protection—or for the defense of the community. As a State’s expansion is always active, at certain times—such as during a crisis—this expansion takes place more completely.
It is no wonder that Carl Schmitt, the prominent German jurist, wrote extensively on this idea. For Schmitt, every efficient government that is capable of decisive action includes an exceptional (dictatorial) element within its constitution. Schmitt’s concept of a “state of emergency” (Ausnahmezustand) connoted when a government might decide to initiate a state of exception. For instance, this is the line of thinking he used to justify Adolf Hitler’s suspension of the Weimar Republic’s Constitution following the Reichstag Fire of 1933. It was not that the Constitution was abrogated; rather, it was “suspended” throughout an endless state of emergency.
As the Israeli historian Yuval Noah Harari recently described, Israel also declared a state of emergency during its 1948 War of Independence, which permitted a range of temporary measures, from press censorship to land confiscation. As Harari writes, “The War of Independence has long been won; but Israel never declared the emergency over, and has failed to abolish many of the ‘temporary’ measures of 1948.” Similarly, as the legal scholar Douglas Rutzen has suggested, “It’s really easy to construct emergency powers. It’s really difficult to deconstruct them.”
During our current pandemic, many of these measures, which represent an extension of the State’s powers, may be viewed as little more than inconveniences, particularly relative to the countless people dying from this disease. However, reconceptualizing fundamental rights is a serious matter. As such, we must guard against measures such as these continuing to shape our civic life, politics, and economies—even long after this pandemic has passed.
Jean Vilbert is a freelance writer in Brazil.