A/HRC/44/49
seeking entrance into the COVID-19 surveillance field. 66 Such private actors should be
subject to robust and transparent public oversight and should themselves adopt policies
consistent with the Guiding Principles on Business and Human Rights.
57.
Several elements are key to ensuring that surveillance is conducted consistently with
international human rights law. Principles that should govern surveillance in the pandemic
are as follows:67
(a)
Any authorization of surveillance should be contained in precise and publicly
accessible laws and only be applied when necessary and proportionate to achieve a
legitimate objective (such as protecting public health);
(b)
Authorization of surveillance of specified individuals should be based on
independent evaluation, preferably by a judicial authority, with appropriate limitations on
time, location, manner and scope;
(c)
Rigorous record-keeping should be required so that individuals and oversight
bodies can ascertain that surveillance was conducted for legitimate public health purposes;
(d)
Any personal data collected should be subject to strict privacy protections to
ensure against disclosure of personal information to anyone not authorized for public health
purposes;
(e)
Some personal data should be expressly excluded from collection, such as the
content of a person’s communications, and robust safeguards must be put in place to ensure
against any government or third-party misuse of such data, including use for purposes
unrelated to the public health emergency;
(f)
Where personal data is anonymized, the State and any third-party actor
involved in collection must be able to demonstrate such anonymity.
IV. Concluding remarks
58.
“How can you have an opinion if you are not informed?”68 In 11 words, the
political philosopher Hannah Arendt summed up the theory connecting article 19 (1)
of the International Covenant on Civil and Political Rights, which protects everyone’s
right to hold opinions without interference, with the guarantee, in article 19 (2), of
everyone to seek, receive and impart information and ideas of all kinds, regardless of
frontiers and through any media.69 She also noted: “If everybody always lies ... nobody
believes anything any longer. ... And a people that no longer can believe anything
cannot make up its mind. It is deprived not only of its capacity to act but also of its
capacity to think and to judge. And with such a people you can then do what you
please.”70
59.
Hannah Arendt knew of what she spoke. A scholar of totalitarianism forced to
flee Nazi Germany, she presented intersecting and fundamental principles of human
rights law – the rights to opinion, expression, access to information, autonomy, selfgovernance – in much the way that the Covenant and the Universal Declaration of
Human Rights promote democratic values and protect human life. While she had in
mind the kind of propaganda that facilitates authoritarianism, her point extends to all
nature of government practices that interfere with the individual’s ability to develop
informed opinions and to take action consistent with those opinions. At this particular
moment in history, we all can see exactly what she had in mind, and why the drafters
66
67
68
69
70
See, e.g., Lorenzo Franceschi-Bicchierai, “We saw NSO Group’s Covid-19 software in action, and
privacy experts are worried“, Vice, 2 April 2020.
The principles are drawn from A/HRC/41/35, para. 50. See also the joint statement of several civil
society organizations entitled “States use of digital surveillance technologies to fight pandemic must
respect human rights“, 2 April 2020.
“Hannah Arendt: from an interview“, New York Review of Books, 26 October 1978.
See also Human Rights Committee, general comment No. 34, para. 2.
“Hannah Arendt: from an interview“.
17
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