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Essay: Watching Corona or Neighbours? - Introducing ‘Lateral Surveillance’ during COVID-19

Posted by Mira Swaminathan and Shubhika Saluja at May 21, 2020 12:25 PM |
Surveillance is already suspected to have become the ‘new normal’ considering the extensive amounts of money that is being invested by governments around the globe. The only way out of this pandemic is to take a humane approach to surveillance wherein the discriminatory tendencies of the people while spreading information about those infected are factored in to prevent excessive harm.

 

In times of emergency, ‘immature and even dangerous technologies are pressed into service, because the risks of doing nothing are bigger.’ Several mechanisms undertaken by governments worldwide, in response to the COVID-19 pandemic, have been criticized for enabling State sponsored mass surveillance. There are certain long term impacts of these mechanisms, especially mobile applications that arm the State with seemingly accurate and real time data of the individual. In this article, we explore the possibility  of these apps becoming tools of  lateral surveillance, i.e., the act of  citizens surveilling each other and becoming the ‘eyes and ears’ of the State, in the near future. Though these apps may be helpful tools for contract tracing in times of the COVID-19 pandemic, the long term implications of these short term measures may cost the members of the society their anonymity, freedom of speech and create obstacles in the creation of a healthy and friendly society. One such implication is the ‘skill of surveilling thy neighbour’ being enabled by these apps to a certain extent at the present. 

The governments across the globe have responded to COVID-19 through aggressive technological measures to trace individuals and enforce quarantine, costing individuals their privacy in exchange for the supposed benefit  to the collective public health. In the same week when the Karnataka Government released a PDF with the names and addresses of around nineteen thousand international passengers who were quarantined in Bangalore, a man in Maharashtra was beaten up for sneezing in public. This stigma against anyone who could be potentially infected is not just prevalent in India but also in other countries. For example, in the United States, a man who returned from a Cruise that had a COVID-19 carrier on  board, received death threats and personal attacks despite him being tested negative  for COVID-19. Though South Korea has been successful in flattening the curve of COVID-19 cases through aggressive contact tracing (using security camera footage, credit card records, even GPS data from cars and cellphones), excessive data was exploited by internet mobs to hound infected individuals leading the government to minimize data sharing with the public. Escalations of a similar nature were evident in India as well when a woman was harassed and boycotted by her neighbours after the Delhi government marked her house with a quarantine sticker. With implicit and explicit forms of ‘watching over your neighbours’, the question then arises, is it the virus we are required to keep a check on or the neighbour next door who is “suspected” of carrying the virus?

What is Lateral Surveillance?  

Surveillance, as is used in the hierarchical sense, is a vertical relationship between the person watching and the person being watched, which is usually the State and the citizen. All situations of surveillance involve power relations. In the conventional form of surveillance, there is a direct power hierarchy between the State and the citizens, and the State determines the collection, control and use of data for ‘public good.’ Lateral surveillance, on the other hand  is a rather nuanced concept where citizens ‘keep an eye’ on other citizens and be vigilant of their acts.  In this setup, there is not a hierarchical relationship where the one being watched is in some way being controlled or is under the authority of the watcher. As described by Mark Andrejevic, surveillance relationships can be mutual, a horizontal relationship between person to person is referred to as lateral or peer to peer surveillance. He further describes it as “the use of surveillance tools by individuals, rather than by agents of institutions public or private, to keep track of one another, covers (but is not limited to) three main categories: romantic interests, family, and friends or acquaintances.”

Sometimes, peer to peer surveillance is used to achieve emotional objectives such as community building and strengthening relationships with neighbours or tackling depression among the lonely. These emotional and social factors act as a driving force for lateral surveillance mechanisms creating a situation where privacy may be undermined for the betterment of the community. Surveillance technologies not only act as a tool for social control, but also as a tool for social exclusion. The mere requirement of Aarogya Setu as a ‘mandatory condition’ to travel via Indian Railways is a massive social exclusion of a large population of people who do not have smartphones. Lateral surveillance thus makes it easier to identify between those who conform to the ‘norms’ and those who don’t.  For instance, even silent acts of not conforming with societal norms or opinion of the majority, threaten freedom of expression: during the lockdown to prevent the spread of COVID-19,  the citizens who chose not to participate in the activity of lighting of lamps (urged by the Prime Minister) were either forced to conform, or were faced with a potential to be termed as  ‘anti-national’ by some of their neighbours. In another instance, in South Korea, the LGBT community came under the scanner after a cluster of Coronavirus cases were reported from a particular area. This resulted in large-scale circulation of homophobic content and comments against the patients who tested positive from the community. This not only made it difficult for authorities to collect information but also increased troubles for the people belonging to the sexual minority in getting tested. 

Lateral surveillance creates a culture of suspicion, where everyone is looked at as a potential suspect.  In the times of COVID- 19, it translates into instances of being suspicious of the activity of a neighbour who could be potentially carrying the virus or someone who exercises his fundamental right to criticize the government. The practice of lateral surveillance is most harmful as it creates a culture of ‘hate’, ‘fear’ and ‘constant suspicion’ against an ‘enemy’.  Lateral surveillance has been used for multiple instances, wherever the State identifies that it “cannot be everywhere”. There have been several campaigns that have been launched to promote lateral surveillance. For example, the “if you see something, say something” campaign launched after 9/11 attacks in the United States of America was an extreme form of lateral surveillance.  The campaign encouraged people to report ‘any suspicious activity’ which resulted in creating a culture of xenophobia and racism where innocent individuals were reported by their neighbours for crimes they did not commit. Thus, the culture of lateral surveillance ensures that a system is created wherein everyone has the duty to ‘keep an eye’ for ‘their own safety’ and this heightens the fear of crime in the society

Potential Lateral Surveillance issues with the Apps tracking Coronavirus

The priority of the government during such times is to take all available resources to address the emergency. However, these measures raise concerns about the invasion of privacy on account of public health considerations and balancing between the two conflicting interests. With the increase  in quarantine monitoring and Corona tracking apps, the question is: whether real time collection and availability of (some of this) information secures the safety of the people or build a culture of surveillance? 

Among these measures, the most publicised one is the Indian Government’s Aarogya Setu app. The app which was initially released hastily with an incomprehensive/ambiguous privacy policy and later replaced without notice to its users, is now being mandated for not only certain groups who are on the frontline such as journalists, e-commerce employees, delivery personnel but also is increasingly becoming a precondition to access public places. The government and private entities alike are making the app compulsory for entering apartments, travelling by the railways or the metro. The concept of ‘consent’ is seen eroding in the face of social pressure as the acceptance of the terms and conditions of the app is no longer an act free from coercion in the larger public interest. However, the Aarogya Setu app which exists over and above the various State Government apps to track COVID-19, enforce quarantine and spread awareness in the respective states, has come under the radar for not meeting the expected privacy standards such as minimal data collection, transparency to verify encryption techniques among others. The privacy policy of the app reveals that it maintains a record of all the places the user may have visited along with records of contact the user may have made with other users.  This exchange of personally identifiable information among people’s devices may become a point of attack for malicious actors as highlighted in the Working Paper of Internet Freedom Foundation. Concerns over the working and information storage of the app were also raised by an ethical hacker who warned that “an attacker can get with a meter precision the health status” of someone anywhere in India. When seen from the lens of lateral surveillance, the information (stored on the server) is vulnerable to unwarranted exposure even though it is only meant to be shared with the government and other departments “formulate or implement an appropriate health response”. What raises deeper issues is the wide scope of the government’s ability to share the response data in de-identified form with several government departments and third parties on a ‘strict necessity’ basis or for research purposes.  The possibility of the app being repurposed to meet multiple purposes cannot be overlooked. This potential for  excessive sharing and function creep are the basis for concerns over changing forms of surveillance, from traditional to lateral due to higher possibilities of leakage of personal information.

A fundamental problem that can be noticed here is that an implementation of a public good is looked at as a binary. Each individual or organization in this pandemic performs their actions based on an “imaginary binary,” wherein the choice needs to be made between two equally worse options, created by their existing circumstances.  Surveillance is regarded as ‘binary’ in nature, a tool used for both protection and control. For example, feminist legal theories have recognized that privacy used at either of the extremes (in the form of a binary) can result in affecting people’s autonomy.  These theories acknowledge that while surveillance regimes exist, there are ‘gaps’ created in the system to reinforce newer surveillance mechanisms. This gap can support vulnerable groups while  a ‘contextualized situation’ is created to ensure everyone’s rights are equally protected. 

It is important to note that implementing 'absolute surveillance’ without basic ethical considerations like how it would affect minority groups (religious minorities, LGBTQIA community etc.) creates a problem of the ‘binary’ between surveillance and privacy, especially since the ‘culture of surveillance’ is involved in the process. Similarly, when the government responds to the pandemic by leveraging technology as its option against protecting the interests of those who may be discriminated against due to such intrusive technologies while ignoring the ethical considerations such as  transparency and openness, it creates an air of suspicion. For instance, inaccessibility or absence of privacy policies in the case of Tamil Nadu & West Bengal Quarantine apps, heightens suspicion about the long term implications of such data collection activities. However, if ethical considerations are adopted in the implementation of these apps, lateral surveillance could be potentially avoided. 

Apps like Corona Watch and Quarantine Watch, are potential examples of such surveillance apps where the State collects personal data and the citizens are expected to be more vigilant towards each other. As these apps  increase the chances of users learning about who could have infected them (by showing the timing when an infected person visited a particular location on interactive maps). Though most of these apps currently available in West Bengal, Tamil Nadu, Maharashtra or Goa are capable of being used as sophisticated tools for State surveillance through creation of heat maps, checking on those quarantined while monitoring containment zones, and potential database for facial recognition because of selfies being sought from individuals at periodic intervals. The problem of lateral surveillance surfaces due to the potential of the same information being leaked to the public due to the lack of safeguards in the app and its design such as excessive data collection, third party exploitation of the data, lack of proper anonymization and encryption measures.   

The other problem is that these apps affect  the attitude of the people, making them more suspicious and wary as a community member. Since these apps make it more likely for personal information of nearby citizens to be revealed to other citizens, they encourage the practice of ‘watching over others’. They are being encouraged to stay updated about who is a possible threat to them or a vector of the virus, which is similar to the objective of neighbourhood watch schemes and peer surveillance programs. Instead of building a ‘healthy society’, there is increased suspicion, heightened fear of the virus, possibilities of discrimination and ostracisation of those suspected of carrying the virus. Further, intrusive tracking and excessive health messaging can discourage citizens, making them feel bullied and stigmatised. As Sean McDonald writes, when these technologies which enable the use of individual information as a “representative sample for public health risk” can have dangerous unintended consequences “when paired with the kinds of panic, scarcity and desperation”in such public health emergencies.

The need for more security makes people more likely to detect threats in every different  action from the normal. This not only heightens the fear among everyone regarding the ‘perceived threat’ of the existence of a quarantined or infected patient, but it also creates a culture of vigilance, i.e. the people start to suspect everything and everyone. As Janet Chan mentions in her work- “such perceived threat has a tendency to ‘increase intolerance, prejudice, ethno-centrism, and xenophobia’. The consequence of the constant contact among neighbours may result in ethnic profiling, increased anxiety, communication overload and create potential tensions among them.” In Seoul where a restaurant manager was “eavesdropping in people’s conversations” just to confirm whether or not they’re infected with the Coronavirus and in India where photos and videos of patients tested positive of COVID are circulated amongst whatsapp groups. Such forms of lateral surveillance in the physical world is already having a negative impact on the society. Especially in India, where the concept of social distancing mirrors and invokes distinct histories of caste hierarchies, even the most diluted form of social distancing is harmful as it reinforces this segregation of ‘touchable’ and ‘untouchable.’ The virus further aids the existing structures of inequality. Hence, social exclusion due to the ‘culture of suspicion’ is deepened further in such a society in times of  a crisis. 

The potential technological solutionism  of it through the aforementioned apps poses greater risks. The problem lies not only in the manner in which the individuals are being encouraged to seek more information but also the way in which the information is being handled by the State. Apart from the aforementioned apps, some States such as Delhi, Kerala and Telangana are using softwares to track cell phone location for the purposes of contact tracing. In Ahmedabad, the MU Corporation map even reveals the  names and addresses of patients who tested positive. Further, the attitude of the people that creates social pressure on the State to reveal personal information as was seen in Mohali. The fact that ‘social pressure’ is a justification for making public quarantine lists, the possibility of more information being rolled out through these apps in the future for the sake of one or a few persons’ protection cannot be ignored. 

Furthermore, as more personal data is gathered, the State needs to ensure that security standards and safeguards are maintained to prevent leakage of such data on social media as was already witnessed in Karnataka, Delhi and Nagpur. Even if these measures are being flagged as “necessary” to enforce quarantine or contain transmission, they are prima facie violative of the right to privacy of the people whose sensitive personal information is being disclosed like public property. There is no doubt that the right to privacy is not an absolute right, but neither the Epidemic Diseases Act, 1897 nor the National Disaster Management Act 2005 provide any explicit basis to disclose personal information of persons who have either been infected with the virus or who have been quarantined. Even if such disclosures can be justified as an act in good faith to prevent the outbreak of the disease under Section 4 the Epidemic Diseases Act or within the powers of the National Authority to take such measures for the prevention of disaster under Section 6(i) of the National Disaster Management Act, they need to be proportionate in nature and have a rational nexus with the legitimate aim sought to be achieved by the State (test for which was laid down in Puttaswamy Judgment).  It is difficult to determine the connection between the careless disclosure of such sensitive information and prevention of the pandemic. There are less intrusive alternatives available. If public knowledge about an infected person’s residence and mobile phone number is going to assist the fight against the pandemic, then it is a clear case of lateral surveillance being encouraged by the State and that is the path to the ‘culture of suspicion’ as explained above.  

In the absence of a comprehensive data protection law (particularly where the State is bound and accountable as a data collection entity), there is no judicial recourse available if the data is used for purposes other than those mentioned in the privacy policies. In certain cases, the privacy policies have not even been made public. This raises more concerns about possibilities of the data being disclosed to unauthorised entities or retained and used for other purposes. This data, if made available or leaked to the public in such times, increases the risks of vigilantism and lateral surveillance resulting in potential discrimination and harassment. The State needs to recognize the risk of normalization of these tools which if continued even after the pandemic could negatively affect the right to privacy not only vis-a-vis the State (as is already the case) but also vis-a-vis other members of society. 

 

Measures to Better Implement Contract Tracing and Reduce Lateral Surveillance 

 

1. Rule of Law and implementation of Privacy Principles : Though the measures introduced for tracking Coronavirus are necessary and crucial in the times of a fast spreading pandemic, they also need to be tested against the requirements of legality and doctrine of proportionality as well. The test of legitimate state aim, necessity and proportionality acts as the guiding force for implementation of state actions that constrain privacy. Deployment of excessively intrusive means to further public health while restraining privacy without any legal basis will do more harm than good.  If the conflict between common good and individual privacy is resolved, the impact of the surveillance measures on people in general would reduce, thereby limiting the prospects of lateral surveillance. The path to prevent lateral surveillance goes through the path of reducing the scope of vertical surveillance itself. For instance, if the data collecting authority ensures that the system does not or is least likely to reveal any personal information of the user, then the risk of the same being available in public  is minimal. In this regard, the privacy policy of Aarogya Setu app states that the data will be stored in “anonymized, aggregated datasets for the purpose of generating reports, heat maps and other statistical visualisations for the purpose of management of COVID-19 in the country or to provide you general notifications pertaining to COVID-19 as may be required.” Further, it also provides that the personal information will not be shared with any third party. 
 

Although it is easier to brush aside the application of the privacy principles due to the lack of a comprehensive data protection law, a pandemic cannot be an excuse to forgo the application of these principles and the rule of law. Presently, India is witnessing instances of loss of privacy and confidentiality, stigmatization and rights violations which have been identified as harms of public health practice and surveillance by the World Health Organization. In order to minimize the harm from surveillance, preventive measures such as avoiding collection of unnecessary identifiable information, limited access to collected data, secured data storage practices, pseudonymisation of collected data, definite period of retention of data and promotion of transparency, inclusiveness and openness, should be taken. For instance, Singapore’s TraceTogether app provides a good example of application of data protection principles. The app collects only the mobile number and creates a random anonymized user ID, uses bluetooth, instead of the GPS location or WIFI or mobile network, stores data only on the phone of the user, and prevents third parties from identifying or tracking the user (employing privacy-by-design). The Privacy Policy of the app depicts how privacy principles can be put to work, with minimum data collection, allowing withdrawal of consent and minimal retention of data among other principles.  Though Aarogya Setu follows most of the aforementioned principles employed at global level as seen in the case of TraceTogether as well, it goes a step ahead to collect  even GPS location which may be considered an excessive means. 

Finally, it is essential that the use of these apps remains limited to the times of pandemic without paving the way for sophisticated surveillance, traditional or lateral, post the pandemic. And for privacy policy of Aarogya Setu mentions the use of information only for the “management of COVID-19” the concerns over the its use for an unidentifiable period of time in the future  are hinting at it becoming a surveillance tool in a world where people will have to live with Coronavirus.  

 2. Positive initiatives for improving mental health of citizens: We understand and acknowledge that the impact of lateral surveillance cannot be completely eradicated during a pandemic, we can suggest mechanisms in which initiatives encouraging surveillance can be better implemented by the State and the citizens. Since even a “privacy preserving” app cannot comprehensively address the fundamental issues relating to the efficacy of contact tracing, intended or unintended consequences of social exclusion and discriminatory use, lateral surveillance can be turned on its head by ensuring that mutual care and trust is practiced instead of enabling surveillance.  The Central  Government and several State Governments such as Maharashtra and Kerala among others are trying to deal with the impact of Coronavirus on mental health with innovative campaigns.  So instead of a helpline number, an app can be introduced by the State that gives counselling services to quarantined patients which would help in destigmatizing the existing scenario. Further, citizens too can be involved in helping one another, for example, neighbourhoods in England use “innovative placards wherein they identify the quarantined people in need (and their concerns) with a simple showcase of ‘red/yellow/green’ placards outside their houses. They have also introduced the use of “printable postcards” that are used to offer help for the elderly in the communities. These community initiatives are a much better way of approaching this public health crisis instead of a ‘sticker’ or a ‘label’ outside the quarantined person’s house labelling them in a negative way, as though they have committed a crime. 

Avoiding the toxic culture created in the ‘new normal'

Citizens need to be made aware of the consequences of this pandemic on the community in a way they can help each other to overcome it , instead of simply alarming or scaring them which would definitely have long term negative impacts on the community. Considering how instances of discrimination against certain communities are already surfacing amidst the pandemic, contact tracing should explored  within the bounds of the law while being implemented through these apps. With certain governments using personnel tracking tools such as smart watches for purposes of public services, the increase in the use of these kinds of intrusive technologies is soon going to be a harsh reality. Surveillance is already suspected to have become the ‘new normal’ considering the extensive amounts of money that is being invested by governments around the globe. The only way out of this pandemic is to take a humane approach to surveillance wherein the discriminatory tendencies of the people while spreading information  about those infected are factored in to prevent excessive harm. It can only be expected that the State would be wary of the means being deployed to achieve the end, and the citizens act responsibly while participating in these initiatives so as to reduce the negative impacts of vertical or lateral surveillance. We should all move towards a society where we watch the virus and carefully use technology to avoid situations where ordinary citizens are encouraged to watch over their neighbours. We need to unlearn this habit of “watching over someone else”  both voluntarily and involuntarily before it becomes too late. 

 

 

 

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