Power of data and regulation in emergency
The COVID-19 health emergency is still ongoing, nevertheless we can already draw some conclusions from the strategies put in place by countries that for the results obtained might be considered as best practices.
What Taiwan, Singapore, South Korea and Israel have in common is a system based on rules and procedures that are well thought out and perfectly aligned with the most advanced tools of technological innovation, such as Big Data, accurate detection methods and AI-based checks.
Knowing first, then deciding is well-known basic rule. The more accurate and up-to-date data you have, the more targeted and effective decisions you are able to make, with the least negative impact on society and economy. To this must be added adequate resources, skills, an agile chain of command with effective communication, plans and the ability to implement them quickly when necessary.
Nothing is improvised: To succeed, it is necessary to be prepared in due time and take advantage of previous experience. Almost all the countries mentioned in this article as reference models had plans drawn up after the SARS epidemic of 2003. For example, in South Korea in 2015, an outbreak of MERS (Middle East Respiratory Syndrome) killed 36 people. As a consequence of a lack of kits to test for the pathogen, infected patients had gone from one hospital to another, contributing to the spread of the epidemic. Since then, the country has an accelerated procedure for the approval of testing kits.
It has to be recognized that the cultural substrate of the Asian countries has obviously contributed to the effectiveness of the strategy deployed: respect for rules, hierarchy and authority as result of a good basic education and a transparent decision-making process based on the mobilization capacity of civil society.
Privacy and health
Whatever the recipe is, with its countless variations, from the mobilization of the secret services and the elite forces of the army in Israel to the decision-making and communicative centralization of Taiwan, it is clear that at the heart of every decision there is the strategy concerning the personal data of citizens, which data to choose, how to collect and manage it and how to store it.
This appears to be the common denominator, regardless of the level of evolution and technological know-how of the country. Late arrived, the United Kingdom’s government is verifying the possibility of using citizens’ mobile phones and other telephone traffic data to support measures to counter the spread of the pandemic; but now it is too late, as noted by Sir Patrick Vallance, scientific adviser of the British government.
Any intervention that is effective must be adopted in a timely manner and preceded by an accurate cost-benefit analysis. There are no perfect systems or models that fits everyone. When deciding to use a digital contact tracking application, as has been done in Israel, Singapore and South Korea, it is necessary to verify its adequacy, based for example on operating methods and legal sustainability.
Furthermore, European rules on the protection of personal data are not an obstacle to health protection, which in the case of a health emergency allows limitations to the ordinary regime if they are necessary, adequate, proportional to the need for prevention, as well as limited in time and do not affect the essential content of the rights. For the communication of health data linked to the needs of epidemiological containment, exceptions to the current rules are allowed, including limitations on the rights of the interested parties. Contact tracing, meaning the collection of location data relating to mobile communications, is legitimate if such data is made anonymous or based on the consent of the interested party.
However, the protection of public health can fall within the exception of national or public safety. In that case, as confirmed by the case law of the CEDU (European Court of Human Rights), surveillance and data collection powers must be exercised on the basis of clear, precise rules that are known in advance. In addition, the necessary and proportionate interventions should be required for legitimate objectives and there must be both a supervisory mechanism and adequate redress tools available to citizens.
It was precisely the protection of security that has allowed the legitimate adoption of measures that sometimes have resulted in generalized surveillance of citizens. In these cases, reference is made to the defense of the interests of the state as system and community, a matter of national competence, pursuant to the same Treaty on the European Union. In this sense, national security differs from public security, commonly understood as something that is protected by enforcement bodies and usually qualified as security and public order.
In any case, it is important that these measures have a time limit and are no longer applicable at the end of the emergency. What has been called “surveillance democracy” can only be allowed under very specific conditions and rules.
The UK government, for example, has set a two-year deadline for the duration of emergency powers currently under discussion in Parliament, with the possibility of renewal for another six months. In Israel, the Supreme Court confirmed the decision to allow Shin Beit, the internal security services, to use the geolocation data of cell phones collected to fight terrorism for the purpose of containing the pandemic but by imposing parliamentary supervision and a deadline for the duration of measurements.
The power of data
The comparison between the different national systems that have faced the emergency highlighted that the success or failure are based on the quality of the data strategy. This calls into question digital public policies, the consistency of digital infrastructures, the geometry of powers for emergency management and the degree of organizational efficiency. Above all, a strong and well-structured public decision-making system emerges as the most important element, together with a health system that, although based on the public-private relationship, is mainly based on the public system.
In this regard, the emergency contributes to a redefinition of powers that was already underway in the global economic system, in the wake of a trend started in US by the strong position taken by the federal government towards digital platforms and Big Tech.
It is interesting to note that between the US model, in which the organization of data is left in private hands and the Chinese model, characterized by the surveillance and control of the government over Big Tech, the European model is taking shape. The European Union has in fact understood that its digital sovereignty is based on research and technological development, built on a balanced public-private relationship and a robust legal and regulatory system, protecting the rights of freedom and preserving its values.
In this regard, it seems that EU has well understood the suggestion addressed by the European Council on Foreign Relations, which in its June 2019 report called for a “European strategic sovereignty” as an essential element of balance also on the strategic level, highlighting the close connection between economic and technological objectives, security and global competition.
This is clearly confirmed by the data strategy launched by EU and its White Paper on artificial intelligence, with the need for Europe to have its own data pools based on infrastructures enabling Big Data Analytics and machine learning. This is further demonstrated by the regulatory work in progress for the governance of European data spaces, with the Data Act and the Digital Service Act Package scheduled for 2021.
The need for each country to have a cutting-edge technological infrastructure able to respond to emergencies, with a solid and efficient socio-health system, has also contributed to the awareness that a redefined role of the state and public powers is needed. Therefore, the state will have to requalify its actions with new and updated rules and enforce them, so as to encourage a sustainable development and guarantee self-determination of information and individual freedom.
It means a new legitimization for the public system which will be called upon to play a fundamental role in protecting the general interest and guaranteeing individual rights, so that innovation is at the service of collective wellbeing.