Digital technologies and surveillance measures during COVID-19 : a proportionate restriction of the right to privacy?

Abstract

This dissertation explores the digital technologies and surveillance measures implemented in the EU to limit the spread of the COVID-19 pandemic and analyses their implications on the right to privacy, with a focus on digital contact tracing applications (‘CT applications’) that alert users of their exposure to the SARS-CoV-2 virus. The European Convention of Human Rights and the EU Charter of Fundamental Rights provide for situations where privacy and data protection rights may be restricted. However, privacy-limiting measures must comply with the law, retain the essence of the right, and be proportionate and necessary in a democratic society. This study investigates what makes privacy-limiting measures proportionate and what measures could be adopted by States which deploy CT applications to help make these applications proportionate. Numerous States are dealing with this public health threat similarly to security threats. Due to the contemporary nature of this topic, there is neither EU law nor case law on public health surveillance in a COVID-19 context. However, the EU courts have dealt with surveillance measures in a national security context; therefore, these cases could provide guidance on how States could deploy public health surveillance measures that comply with the human rights framework. Despite the lack of EU legislation regulating surveillance and technologies deployed in COVID-19, EU authorities issued guidance on how States could deploy these measures and what safeguards could be adopted to protect individuals’ rights. This study concludes that if States uphold both the rights to privacy and public health, ensure that the CT applications are functional, and incorporate privacy-preserving measures in their technology, then these measures will help make CT applications proportionate. Even though CT applications will not solely stop the COVID-19 pandemic, provided they are deployed correctly, they would support and shoulder some of the burdens of manual contact tracers.