If you are quiet enough, you can almost hear the norms of privacy shifting before you

Contact-tracing: even if you don’t know the meaning of the word, it is only a matter of months before your phone’s operating software comes with the technology already installed in it. In the case of the unprecedented partnership between Google and Apple, contact-tracing involves tracking geographical location through phones starting from mid-May onwards [through a downloadable app] followed by the hopefully less invasive Bluetooth-enabled technology to be rolled out later on. Other companies working on, or already providing, contact-tracing also use these same technologies to keep track of peoples’ movements. The appeal of contact-tracing is that it allows people who have been in contact with someone who was later on diagnosed with COVID-19 to be made aware and self-quarantine or isolate.

Asian countries that were first affected by the outbreak have mainly had success through the use of contact-tracing, spurring the rest of the world to seriously consider the use of this technology. A recent Oxford study has come to the conclusion that using digital contact-tracing would indeed be useful to reduce transmission, and potentially stop the virus from spreading further than it already has. The way this technology works does still rely on individuals testing positive on entering the information in a public health app on their phone, and anybody within the designated period [14 days seems to be the default so far] that came in contact with the infected person will be notified. This also relies on a country’s capacity to provide testing on a wide-enough scale to make the use of contact-tracing useful, and not just simply an invasion of privacy allowing private companies to collect more data on us than absolutely necessary.

Alongside the applications, other practices have been put in place that call into question privacy norms in these times. These practices involve Google’s use of mass data sets using peoples’ geographical location to indicate how effective lockdowns are in over 130 countries, as well as several mobile carriers in Austria, Italy and Germany sharing data regarding movements and concentrations of people to health authorities.

Even just focusing on Apple and Google’s partnership, around 3 billion people worldwide use iOS or Android operating software – that is over 33% of the world population.

So, let’s talk about the legal framework surrounding this upcoming mass surveillance network and what safeguards exist regarding sharing our personal data [which includes identifiable personal geographical location], what companies and application creators are required to do by law, and what an ideal contact-tracing technology would involve in order to keep our data private and respect our right to protect our personal data.

You heard us right: in case you didn’t already know, you have a right to protect your personal data in the European Union, based on the EU Charter of Fundamental Rights (Article 8 specifically). This article is itself based off of the broader right to privacy granted by the European Convention on Human Rights. The right of protection of personal data involves the processing of that data in a fair way, for a specific purpose, with your consent [in most cases]. If you’ve already heard of the General Data Protection Regulation (GDPR), you’re already one step ahead, as that is the main legal instrument that is of interest to us when it comes to understanding our right to personal data protection from companies such as Apple, Google, data providers or any application creators.

The GDPR is the law that tells companies what data they are allowed to collect, how much of our data they are allowed to actually ask for, how long they can keep it, what the companies have to tell us when gathering the data [and they have to state a specific purpose, it cannot be for a generic or general reason], and plenty of other limitations and safeguards for us.

Keeping with the Google and Apple example, depending on the functioning and type of technology they use in the first and second phase of contact-tracing, the data may be considered personal or not. Personal data, according to the GDPR, is anything that allows you to be identified [such as your location], or identifiable. As an example of identifiable data, in South Korea the government sent out text messages indicating the public locations of where anybody who had tested positive for the virus had been over the past few days – even without a name, if you know someone well enough or if they told you about their day yesterday and what they had been doing in the past week, you could potentially guess who the person in the text messages referred to. This is data that allows you to be identified.

Companies collecting and processing personal data also have the responsibility of collecting and processing with your consent, meaning you have to explicitly agree to it. The definition of consent for the GDPR is that it must be freely given, specific, informed and unambiguous. This is quite a problematic area already from our point of view, as often times we simply click on the “agree” button on that little annoying bar at the bottom to simply have it disappear. Quite frankly, how many of us can honestly say you know what cookies do? Or even that you know that this agree button allows the website to track your web activity through cookies? Yeah, us neither - hence the problem of consent, even in a very widespread situation such as accepting cookies on a web browser.

Another concept that comes up in the GDPR and that leads us unto our final topic is data protection by design. As the name indicates, this pushes companies dealing with personal data to think of data protection and privacy from the very beginning of the design process, especially in the case of creating applications that track our movements or operating software that contain such an invasive feature to start with. Privacy by design is a framework and an approach first developed by a Canadian woman named Ann Cavoukian back in 1990s and it is based on the 7 principles seen below. Out of these 7 principles, the GDPR has explicitly called for data protection by design, and data protection by default.

Overall, we can only hope that Apple’s involvement in the process with Google in this particular venture certifies a higher degree of privacy, and that the privacy by design framework will serve as the groundwork for the upcoming contact-tracing technologies that we are assured to continue see grow as we deal with this pandemic.

COVID-19 outbreak: what measures are being taken at the European Union level?

The public health emergency the world is currently facing with the COVID-19 spreading in all countries has major impacts at various levels. As Europe is the epicenter of the Coronavirus pandemic, we decided to take a closer look at the measures taken by the European Union in response to this crisis. To understand how and why the European Union acts in a particular way when it comes to legislating in a specific area, one must first understand that the EU may only legislate within the limits of the competences conferred upon it by the Treaties. Competences are divided by the Treaty of Lisbon in 3 categories. Article 3 TFEU grants exclusive competence to legislate and adopt binding acts to the EU in several areas, such as the establishment of competition rules necessary for the functioning of the internal market, and monetary policy for euro area countries. For the areas listed in article 3 TFEU, it therefore means that the Member States will only be able to legislate if the EU empowers them to do so. The second category of competences is found in article 4 TFEU, which grants shared competences to the EU and the Member States to legislate on matters such as the internal market or economic, social and territorial cohesion. It simply means that Member States will legislate and adopt binding acts where the EU has not exercised its own competence. Finally, article 6 TFEU deals with supporting competences, where the EU cannot legislate but only intervene to support, coordinate or complement the actions taken by the Member States. It concerns areas such as industry, culture, and, most important for the purpose of this article, the protection and improvement of human health. However, the area of public health is also found in article 4 TFEU dealing with shared competences; the EU has in this respect the competence to legislate together with the Member States on shared safety concerns in public health matters, limited to the aspects defined in the TFEU.

What does that mean in practice? Put simply, national states in time of public health crisis must take the lead and implement the measures they consider necessary to counter the threat. But unsurprisingly, the EU still has the duty to coordinate the national efforts and to support the Member States in the measures they decide to adopt. There are currently two European agencies dedicated to support national governments in public health issues: the European Centre for Disease Prevention & Control (ECDC), which monitors emerging disease threats to coordinate responses among national states, and the European Medicines Agency, which manages the scientific assessment of EU medicines on their quality, safety and efficiency.

In the present situation, the ECDC has already issued 39 communications on the virus between the 5th of January and 18th of March, providing guidelines on infection prevention, contagion rates, recommendations on how to deal with the situation regarding communal areas such as schools, and expertise on treating the weakest ones (elderly, underlying health conditions, pregnant women). However, the risk assessment of the ECDC in January regarding a potential outbreak in Europe of COVID-19 was said to be low to moderate, considering that the member states would follow the recommended prevention measures (social distancing, hygiene measures, etc). It is only at the end of January that the ECDC began to qualify the spread of the virus as likely instead of low, warning the European countries to implement and apply rigorous control measures.

Further guidelines were released in February, regarding the management of patients in hospitals, while Italy’s specific situation was first addressed by the ECDC on the 21st of February. The first emergency meeting between EU health ministers took place on the 13th of February, when only 46 cases were confirmed in the whole European territory at the time. This meeting was meant to serve the function of coordinating and ensuring the supply of medical equipment, providing support to hospitals, and financing research to develop a vaccine.

So basically, at the public health level, the European Union through the ECDC has regularly released various updates and recommendations on coordinating efforts against the virus to national states on a nearly daily basis. However, even if the European infrastructure allows for an efficient exchange of information on the crisis between Member States and specifically regarding the adequate public health measures to adopt in response to the emergency, the actual legal acts to be adopted ultimately rest on the Member States competences. It is important to recognize that population, health care systems and cultural norms differ greatly from one European country to another, meaning that one adequate legal measure adopted in response to the coronavirus crisis in one Member State can potentially not qualify as efficient or adequate in another Member State. This is why the public health competence is a national prerogative, with the primary goal for the national governments to protect their own populations through their national sovereignty, but still strongly helped and guided by the European agencies concerned.

Nevertheless, with regard to the drastic economic consequences the crisis is bringing about, the European Union undeniably has a much more active role than in the public health sector. Indeed, the crisis is of such significance that it allows the application of article 107(2)(b) TFEU, dealing with State Aid and enabling Member States to compensate companies for the damage directly caused by exceptional occurrences. Furthermore, Italy’s situation enables the Commission to resort to article 107(3)(b) in order to approve additional support measures to remedy a serious disturbance to the economy of a Member State. Surely, the use of this article will be needed for other European countries – Spain looking like a likely candidate next. With regard to the EU fiscal framework, the Commission together with the Council are planning to accommodate exceptional spending such as health care expenditure and relief measures for firms and workers. In addition, it will assist the Member States in their fiscal efforts, with the possibility of the activation of a general escape clause to accommodate a more general fiscal policy support to address severe economic downturns in the EU.

The outbreak is also having negative consequences on the EU transport systems, especially the aviation industry. To mitigate the impact of the crisis on this sector, the Commission is proposing targeted legislation to temporarily alleviate airlines from their normally required use of airports slots. The EU budget will also provide support to the affected companies and credit holidays to debtors. Additionally, it will protect workers from unemployment and loss of income to avoid permanent effect through the promotion of short-time work schemes, the preparation of a legislative proposal for a European Unemployment Reinsurance Scheme and the deployment of a European Social Fund, with up to 179 million EUR available in 2020. Finally, the Commission has proposed under a new initiative, the Coronavirus Response Investment Initiative, to direct 37 billion EUR under cohesion policy in the fight against the COVID-19 outbreak.

To summarize, the role of the EU in the public health crisis consists mostly of coordinating the efforts of the Member States in the national measures they decided to implement in response to the outbreak. It can be noticed however that while the EU’s role in the public health sector is more passive, consisting mainly in providing guidelines and recommendations to European countries, the EU does propose concrete actions with regard to the economic consequences the crisis brings about. This can be explained by the competences conferred to the EU and the Member States by the TFEU ; while the EU cannot directly legislate in the public health sector, it has the competence to do so together with the European countries (shared competence) when it comes to the economy of the internal market.

We hope you learned something with this article and understand a bit more why the EU takes or does not take specific measures with regard to the crisis. In the meantime, stay safe, at home if possible, brave and positive!

Antilynching bill. What is it, why now?

On Wednesday the 26th of February 2020, the US House of Representative voted on a historical bill making lynching a federal crime, the Emmet Till Antilynching Act. The bill was introduced to the HR on January 3rd, 2019 by the Congress-man Rush. The bill passed the Senate with some amendments (to align it with the Senate bill) and received unanimous approval. On the 26th of February this year, the bill got the support of 410-4 in the House. This Act will make lynching a federal crime by establishing it as a new civil right violation thereby amending the federal Civil Rights Act.

According to the already existing anti-lynching Californian Law, lynching is the crime of removing someone from the lawful custody of a peace officer by means of riot. In other words, it is the illegal trial and sentencing of an alleged offender by people without having been given prior competence. These acts were usually directed towards racial minorities.The lynching case of Emmet Till, after whom the anti-lynching Act was named, illustrate this definition. Emmet Till was a black teenager in 1955 in Mississippi. One night he got brutally beat in the head and his body was shoved in the Tallahatchie River. The offenders were the husband and the brother of a woman named Carolyn Bryant who claimed having be whistled by Emmet in a store. Her relatives endured a biased trial for the brutal murder of Emmett and were acquitted by an all-white, male jury. Carolyn Bryant later admitted that Mr.Till never made advances towards her. Those two men were not lucky for being acquitted. Back then, 99 percent of lynching perpetrators escaped punishment.

Texas, standing third among the states in the total number of lynching victims, can be seen as an example of the evolution of lynching in US history in order to better depict the phenomenon of lynching. From 1846 to 1861, at least seventeen vigilante organizations were reported in the State. Those organizations were organised groups of citizens who were taking upon themselves the protection of the lynching laws. These laws were made up by those organizations in an arbitrary manner. During the period of reconstruction (1865-1874) following the civil war, the use of organized terror increased. New organizations, including the famous Ku Klux Klan raised in popularity as a result of a common reluctance towards black emancipation, afraid the object of their attacks might destroy their political dominance.“What was by law a crime came to be regarded as a political duty -the duty of self-defence.”. The enactment of Jim Crow laws increased racial hostility during the 1915. The year 1925 is marked as the first year that is lynching-free since the start of the recording of lynching crimes in the State of Texas. This terror, drove millions of black people to flee the South.

The Emmet Till Antilynching Act notes that nearly 200 anti-lynching bills were introduced in Congress during the first half of the 20th century and that between 1890 and 1952, 7 presidents petitioned Congress to end lynching. Why is it then that the bill is only passing in 2020? Interestingly, the argument brought forward by the four only Congressmen having voted against the bill are basically the same as the ones brought forward by Congressmen before, namely that it is an overreach of the federal government, that it tramples on state’s rights and that it amounts to a federalization of criminal law.

In 1948, William D. Ford wrote an article for the Virginia Law review after another antilynching bill was introduced in each house of Congress, advocating that making it a federal crime would be unconstitutional. Back in 1948, the only way to give an antilynching law constitutional grounds was under the (back then relatively newly established) Section 1 of the 14th amendment of US Constitution establishing that “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. Ford explains that although it is evident that lynching is a deprivation of life without due process of law, for a successful application of the 14th amendment, it must be further shown that it is the state who deprived that victim of its constitutional right based on the Case McGbee .v Sipes. Hence, individual action may not be considered as that of the state. Another question is that of an officer of a state perpetrating the crime of lynching under the authority of a state command. In such case, the officer’s crime could be held a being as state action and thereby punishable under the Fourteenth Amendment.

Pillsbury however, an earlier scholar, brought interesting arguments rebutting what was later argued by Ford, also as a response to an antilynching bill introduced to the Congress. He explains that the fourteenth amendment brings a duty to the state to ensure equal protection under the law to its citizens. Thereby, the constitutional requirement may be violated by both acts of commission or omission. The failure of a State to actively preserve its citizen’ right endowed by the US Constitution is a breach of duty toward the United States. In other words, although individual actions are not actions of the state, the failure of the State to preserve those rights endowed by the US constitution is a breach of its duty.

A strong argument brought forward by proponents of the antilynching law has pertained to the lynching of aliens. Indeed, the US had received complains by different diplomatic officials for US inaction towards lynching of a non-US citizen. The lynching of the Italian Joe Speranza in 1915 is a notable example. The lynching of Chinese immigrant sparked flames between the two countries. Worth mentioning is also the 1851 riot in New Orleans when the Spanish consul and members of the consulate were lynched.

Now what does that bill represent for the US today? House Speaker Nancy Pelosi spoke on the floor ahead of the vote in support of the measure, saying, "Today Congress has an opportunity to acknowledge its responsibility for its historic failure to confront and end the horror of lynching in America."Some scholars would advocate that the role of the newly voted Act goes beyond the symbolic and that a modern-day lynching is on the rise. “The modern-day lynching” refers to Latino-American violence. Afterall, Congressman Bobby L.Rush (the representative of the bill) said "the importance of this bill cannot be overstated. From Charlottesville to El Paso, we are still being confronted with the same violent racism and hatred that took the life of Emmett and so many others”.

For more information, please check the references!