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LEAVING LOCKDOWN: THE IMPACT OF COVID-19 ON CIVIL LIBERTIES AND NATIONAL SECURITY IN THE UK & USBY NIKITA MALIK

May 2020

DEFENDING EUROPE: “GLOBAL BRITAIN”AND THE FUTUREOF EUROPEANGEOPOLITICSBY JAMES ROGERS

DEMOCRACY | FREEDOM | HUMAN RIGHTS Report No. 2018/1



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Title: “LEAVING LOCKDOWN: THE IMPACT OF COVID-19 ON CIVIL LIBERTIES AND NATIONAL SECURITY IN THE UK & US” BY NIKITA MALIK

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Front Cover: (from left to right) Contact tracing system in the United Kingdom, 3D rendering isolated on white background, by AlexLMX – Royalty-free stock illustration ID: 1725136663 – https://www.shutterstock.com/image-illustration/contact-tracing-system-united-kingdom-3d-1725136663; Corona Virus Tracking App privacy concerns concept with hand holding cell phone with application design showing choice between app and privacy, by Firn – Royalty-free stock photo ID: 1708760140 – https://www.shutterstock.com/image-photo/corona-virus-tracking-app-privacy-concerns-1708760140; and Contact tracing system in the United States, 3D rendering isolated on white background, by AlexLMX – Royalty-free stock illustration ID: 1725136630 –https://www.shutterstock.com/image-illustration/contact-tracing-system-united-states-3d-1725136630.

LEAVING LOCKDOWN: THE IMPACT OF COVID-19 ON CIVIL LIBERTIES AND NATIONAL SECURITY IN THE UK & USBY NIKITA MALIK

May 2020



Leaving Lockdown: The Impact of COVID-19 on Civil Liberties and National Security in the UK & US

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Acknowledgements

I am grateful for research assistance provided by Henry Jackson Society interns Avraham Spraragen, Avilia Zavarella, and Georgina Edwards. I would also like to thank a number of anonymous reviewers for their helpful comments and feedback.

About the Author

Nikita Malik is the Director of the Centre on Radicalisation and Terrorism (CRT) at the Henry Jackson Society. She is an internationally recognised expert on countering violent extremism, terrorism, and hate-based violence, with a focus on youth deradicalisation. In her role, she has worked with key policy makers and government departments in the UK and globally.

A key component of Nikita’s work focuses on the propagation of extremist material online, including on social media platforms and the Darknet. Her research has put forward a number of solutions to foster engagement between UK government policymakers and technology companies. Her past research reports have been regularly featured in the media, and her findings and policy recommendations have been discussed in the Houses of Parliament, European Parliament, the US State Department, and the United Nations.

In addition to working with government policy makers and the media, Nikita has also engaged NGOs to build partnerships and deliver high-impact programmes on youth and radicalisation, including Save the Children, Child Soldiers, Child to Child, UNICEF, and others. Her work on radicalisation has paralleled models on how children are exploited by gangs, cults, and violent groups, and the way technology can help or hinder their exit.

Her work to date led to Forbes magazine honouring her in 2018 as a ‘30 under 30’, and a key influencer in law and policy. Nikita was educated at the University of Oxford (where she completed her MA and MSc) and has a second MSc in Middle Eastern Politics and Arabic from SOAS, University of London. She is fluent in four languages.


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Contents

About the Author ......................................................................................................2

Acknowledgements ..................................................................................................2

About The Henry Jackson Society .........................................................................4

About The Centre on Radicalisation and Terrorism .............................................4

About The Centre on Social & Political Risk .........................................................4

1. Introduction .........................................................................................................5

2. Civil Liberties for Security – What’s the Trade-Off? ......................................7

a. Emergency Legislation ........................................................................................... 8

3. Policing and Coercive Control.......................................................................... 11

a. National Security Determinations ......................................................................11

b. Detention and Trials .................................................................................................11

c. Powers Related to Infectious Persons .............................................................12

4. Data Collection, Surveillance, and Security .................................................. 15

a. Data Mining ................................................................................................................15

b. Privacy .........................................................................................................................16

c. Accuracy ..................................................................................................................... 17

5. Policy Recommendations and Looking Ahead ............................................. 18


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About Us

The Henry Jackson Society is a think-tank and policy-shaping force that fights for the principles and alliances which keep societies free, working across borders and party lines to combat extremism, advance democracy and real human rights, and make a stand in an increasingly uncertain world.

The soUTh China sea: Why iT maTTeRs To “gLoBaL BRiTain”

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The Henry Jackson Society is a think-tank and policy-shaping force that fights for theprinciples and alliances which keep societies free, working across borders and party lines tocombat extremism, advance democracy and real human rights, and make a stand in anincreasingly uncertain world.

About The Henry Jackson Society

The Global Britain Programme is a research programme within the henry Jackson society thataims to educate the public on the need for an open, confident and expansive Britishgeostrategic policy in the twenty-first century, drawing off the United Kingdom’s uniquestrengths not only as an advocate for liberalism and national democracy, but also as a custodianof both the european and international orders.

About the Global Britain Programme

DEMOCRACY | FREEDOM | HUMAN RIGHTS

About Us

The Asia Studies Centre attempts to provide an in-depth understanding of the structural shifts,regional complexities and historic tensions that exist alongside the tremendous economic andsocial growth that traditionally characterise the “rise of asia”. With some predicting that theregion will account for 40% of global gDP by 2050, a post-Brexit Britain must develop a foreignpolicy posture for the region that navigates British economic interests and cultural and politicalvalues on the one hand, while maintaining strong support for regional liberal democracies andinternational law on the other.

About The Asia Studies Centre

About The Henry Jackson Society

The Centre on Radicalisation and Terrorism (CRT) at the Henry Jackson Socerty is unique in addressing violent and non-violent extremism. By coupling high-quality, in-depth research with targeted and impactful policy recommendations, we aim to combat the threat of radicalisation and terrorism in our society.

About The Centre on Radicalisation and Terrorism

The Centre on Social & Political Risk (CSPR) is a citizen-focused, international research centre, which seeks to identify, diagnose and propose solutions to threats to governance in liberal Western democracies. Its fundamental purpose is to underscore the potential harm that various forms of social, cultural and political insecurity, conflict and disengagement can pose to the long-term sustainability of our democracies.

About The Centre on Social & Political Risk


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1. Introduction

Following the terrorist attacks on 11 September 2001, then-US President George W. Bush framed the challenge facing the United States thus: “Our nation has been put on notice: We are not immune from attack”. 1 Over a decade and a half later, in 2017, then-UK Foreign Secretary Boris Johnson described the global effort against radical Islam as “a fight not against a military opponent but against a disease or psychosis”. 2 As these two examples show, the use of medicinal language to describe the war against terrorism has been a common theme in speeches of leaders in the United States (US) and the United Kingdom (UK). 3 Yet recent statistics produced by New York City (NYC) health officials have revealed that the number of people dying because of COVID-19 in NYC has already surpassed the number who were killed in the 9/11 terrorist attacks. 4 Both terrorist attacks and pandemics are high-impact events that have the ability to disrupt lives. Indeed, elected leaders have now flipped this language on its head by framing the fight against COVID-19 as a war. 5

The framing of a new high-impact event as a war against a common enemy has important implications for the role of law enforcement and the intelligence services. The 9/11 attacks in the US, as well as those on 7 July 2005 in the UK (7/7), led to almost two decades of new legislation under the broad remit of ‘counter-terrorism’. These laws – often framed as emergency measures – changed the lives of ordinary citizens and communities: preventative approaches, for example, directly affected free speech and free movement (including the use of stop and search), the sharing of intelligence and data on civilians between nations (and sometimes between nations and technology companies), and the creation of provisions around new policies on ‘unacceptable behaviour’. Similarly, new legislation in the form of the Coronavirus Act 2020 in the UK, and federal powers in the US, 6 has been employed to respond to fast-moving conditions, impacting the civil liberties of British and American populations, much like counter-terrorism measures did.

1 ‘Selected Speeches Of President George W. Bush 2001 – 2008’, The White House George W. Bush Archives, pp.65-73, available at: https://georgewbush-whitehouse.archives.gov/infocus/bushrecord/documents/Selected_Speeches_George_ W_Bush.pdf, last visited: 22 May 2020.

2 ‘How Global Britain is helping to win the struggle against Islamic terror’, UK Government, 7 December 2017, available at: www.gov.uk/government/speeches/how-global-britain-is-helping-to-win-the-struggle-against-islamist-terror, last visited: 22 May 2020.

3 This has been especially the case with words such as ‘symptom’, ‘disease’, and ‘virus’. See, for example, Prime Minister Tony Blair’s speech on the London bombings, delivered at the Labour Party national conference (16/07/2005) – “This is what we are up against. It cannot be beaten except by confronting it, symptoms and causes, head-on”: ‘Full text: Blair speech on terror’, BBC News Online, 16 July 2005, available at: http://news.bbc.co.uk/1/hi/uk/4689363.stm, last visited: 22 May 2020. See also speech by NATO Secretary General, Lord Robertson (09/12/2002) – “The hostage-taking in October was a terrible act. But it was more than that. It was also the latest symptom of a disease that is spreading through the international system”: ‘“The Role of Military in Combating Terrorism” Speech by NATO Secretary General, Lord Robertson’, NATO, 9 December 2002, available at: https://nato.int/docu/speech/2002/s021209b.htm, last visited: 22 May 2020.

4 As of 11 May 2020, at least 14,693 people had died in NYC from COVID-19, according to a daily summary released by NYC officials. The 9/11 attacks killed 2,753 people in NYC at the site of the World Trade Center and 2,977 nationwide in the attacks that occurred in NYC, Washington, DC, and in Shanksville, Pennsylvania. See ‘COVID-19 Data’, NYC Health, available at: www1.nyc.gov/site/doh/covid/covid-19-data.page, last visited: 22 May 2020; and Office Of Chief Medical Examiner, ‘World Trade Center Operational Statistics’, NYC, 03 September 2015, available at: http://www.nyc.gov/html/ocme/downloads/pdf/public_affairs_ocme_pr_WTC_Operational_Statistics.pdf, last visited: 22 May 2020.

5 See, for example, Matt Hancock: “We are in a war against an invisible killer and we have got to do everything we can to stop it,” in his oral statement to Parliament: ‘Controlling the spread of COVID-19: Health Secretary’s statement to Parliament’, UK Government, 16 March 2020, available at: www.gov.uk/government/speeches/controlling-the-spread-of-covid-19- health-secretarys-statement-to-parliament, last visited: 22 May 2020. See also Donald Trump referring to himself as a “wartime president” and labelling the virus an “invisible enemy”, as if referring to insurgents, in: ‘‘Invisible enemy’: Trump says he is a ‘wartime president’ in coronavirus battle – video’, The Guardian, 23 March 2020, available at: www.theguardian.com/world/video/2020/mar/23/invisible-enemy-trump-says-he-is-wartime-president-in-coronavirus- battle-video, last visited: 22 May 2020.

6 Hasselman, S. T. et al., ‘Novel Coronavirus: navigating US federal and state rules and regulations during a public health emergency’, Reed Smith, 12 February 2020, available at: www.reedsmith.com/en/perspectives/2020/02/novel-coronavirus-navigating-us-federal-and-state-rules, last visited: 22 May 2020.


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Reduced liberty may be the price to pay for more effective security. This paper, divided into four sections, studies this trade-off in greater detail. The first section examines legislation passed in the UK and the US in response to COVID-19 and reflects on the implications of emergency measures and their longevity. The second section explores the uses of surveillance and policing to monitor the movement of individuals, as well as the spread of disease. It cites the use of counter-terrorism legislation to prosecute those who intentionally spread COVID-19, and considers the risks of over-policing. The third section scrutinises the use of data to monitor individuals following the easing of lockdown constraints. Finally, by way of a conclusion to the paper, the fourth section puts forward a series of recommendations to the governments of the UK and the US to address the balance between civil liberties and securitisation for the sake of public safety, based on successes from the counter-terrorism space.


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2. Civil Liberties for Security – What’s the Trade-Off?

An August 2019 report by the University of Cambridge’s Centre for the Study of Existential Risk found that no country is sufficiently prepared for global risks, and identified one ‘catastrophic’ risk as a natural or engineered global pandemic. 7 This conclusion was echoed by the Global Health Security Index, last released by the John Hopkins Center for Health Security in 2019, which found that the average score of 195 countries on their pandemic preparedness was 40 out of a possible 100. 8 This lack of preparedness results from several gaps in resource distribution, some of which relate to security. While defence establishments within countries often have existing frameworks and processes to facilitate policy decisions for extreme risks, these tend to be used on present issues, rather than future concerns, due to resource and budget constraints. 9 Following 9/11, the US’s most comprehensive pandemic plan was created under President George W. Bush, and it is still in use – in a reduced form – today. 10 The plan’s preparedness was compromised by reduced funding. 11 And while the UK is a world leader in applying an all-hazard national risk assessment process, Exercise Cygnus (run in October 2016) exposed the gaps in Britain’s pandemic response plan, including a shortage of critical care beds and personal protective equipment. 12 The findings from Exercise Cygnus are yet to be made publicly available. This lack of transparency has meant that it is impossible to discern whether the recommendations contained in a resultant report were acted upon.

Where logistical preparedness is at risk, existing defence and policing apparatuses often step in to fill the gaps. In the US, the National Guard is used most commonly, in extremis, to suppress riots. It could therefore, in theory, enforce quarantines on communities. 13 Military forces’ medical units and base facilities for quarantine are also being considered. In the UK, 20,000 military personnel are on standby as part of the ‘COVID Support Force’. 14 Where public health investigations have occurred in the past – such as the investigation into the use of the Novichok

7 Recchia, G. and H. Belfield, ‘Conversation: no country is sufficiently prepared for global risks’, Centre for the Study of Existential Risk, 5 November 2019, available at: www.cser.ac.uk/news/conversation-no-country-sufficiently-prepared-glob/, last visited: 22 May 2020.

8 Pearce, K., ‘Pandemic simulation exercise spotlights massive preparedness gap’, John Hopkins University Online, 6 November 2019, available at: https://hub.jhu.edu/2019/11/06/event-201-health-security/, last visited: 22 May 2020.

9 Barrie, D., ‘Defence spending and plans: will the pandemic take its toll?’, International Institute for Strategic Studies, 1 April 2020, available at: www.iiss.org/blogs/military-balance/2020/04/defence-spending-coronavirus, last visited: 22 May 2020. See also: “Considerable financial resources have been devoted to pandemic influenza preparedness planning at the federal and state levels, however, resources at state and local levels may be inadequate to implement a robust preparedness plan” in: Blumenshine, P. et al., ‘Pandemic Influenza Planning in the United States from a Health Disparities Perspective’, PubMed Central, May 2008, available at: www.ncbi.nlm.nih.gov/pmc/articles/PMC2600245/, last visited: 22 May 2020.

10 Mosk, M., ‘George W. Bush in 2005: ‘If we wait for a pandemic to appear, it will be too late to prepare’’, abcnews Online, 5 April 2020, available at: https://abcnews.go.com/Politics/george-bush-2005-wait-pandemic-late-prepare/story?id=69979013, last visited: 22 May 2020. Government agencies slowly abandoned their pandemic-planning efforts, with the Homeland Security department in 2017 shelving its decade-plus efforts to devise models of how outbreaks affect the economy. See: Lippman, D., ‘DHS wound down pandemic models before coronavirus struck’, POLITICO, 24 March 2020, available at: www.politico.com/news/2020/03/24/dhs-pandemic-coronavirus-146884, last visited: 22 May 2020; and Diamond, D., ‘Inside America’s 2-Decade Failure to Prepare for Coronavirus’, POLITICO, 11 April 2020, available at: www.politico.com/news/magazine/2020/04/11/america-two-decade-failure-prepare-coronavirus-179574, last visited: 22 May 2020.

11 White House budget officials repeatedly rebuffed requests to fund the nation’s emergency stockpile, turning down the health department’s $1.5 billion-plus proposal in early 2019 and asking Congress for $705 million instead. See: Diamond, D., ‘Inside America’s 2-Decade Failure to Prepare for Coronavirus’, POLITICO, 11 April 2020.

12 Wentworth, J. and M. Stock, ‘Evaluating UK natural hazards: the national risk assessment’, UK Parliament Post, 24 April 2019, available at: https://post.parliament.uk/research-briefings/post-pb-0031/, last visited: 22 May 2020; Gardner, B. and P. Nuki, ‘Exclusive: Exercise Cygnus warned the NHS could not cope with pandemic three years ago but ‘terrifying’ results were kept secret’, The Telegraph, 28 March 2020, available at: www.telegraph.co.uk/news/2020/03/28/exclusive-ministers-warned-nhs-could-not-cope-pandemic-three/, last visited: 22 May 2020.

13 Cancian, M. F., ‘Use of Military Forces in the COVID-19 Emergency’, Center for Strategic & International Studies, 17 March 2020, available at: www.csis.org/analysis/use-military-forces-covid-19-emergency, last visited: 22 May 2020.

14 ‘Coronavirus: Everything The Military Is Doing To Fight COVID-19’, Forces Network, 22 April 2020, available at: www.forces.net/news/coronavirus-how-military-helping, last visited: 22 May 2020.


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nerve agent in Salisbury in 2018 – these have been carried out by Counter Terrorism Policing. 15 Managing impending threats, therefore, requires some use of existing security apparatuses. Thus, balancing security and liberty often involves an assessment of the security interest, including the gravity of the threat and the effectiveness of existing measures to address it.

Security resources are also likely to be diverted to what are perceived as the greatest threats. In a March 2020 Pew Research Center survey, the American public named the spread of infectious diseases as the greatest threat to the country. 16 For the first time, this surpassed the threat of terrorism: 79% of Americans named outbreaks of disease as a major threat to the country, compared to 73% of Americans who saw terrorism as a major threat. Counter-terrorism measures nonetheless provide an important context for examining the trade-offs between reduced civil liberties and increased security. Following high-impact events such as terrorist attacks, public concerns regarding government intrusions on privacy tend to decrease. After the terrorist attacks in Paris, France and San Bernardino, California in 2015, for example, a national survey by Pew Research Center found that the American public was less concerned that anti-terrorism policies restricted civil liberties: such concerns fell to their lowest level in five years (to 28%), with twice as many people (56%) stating that their greater concern was that policies had not gone far enough to adequately protect the country. 17 Similarly, following the 7/7 bombings in the UK in 2005, a Guardian/ICM poll illustrated that 73% of Britons would trade civil liberties for security, with only 17% rejecting it outright. 18 A more recent survey by YouGov in May 2018 found that Britons would still be willing to trade civil liberties for the purposes of countering terrorism: 67% were in favour of monitoring all public spaces in the UK with CCTV cameras, 63% were in favour of making it compulsory for every person in the UK to carry an ID card, 64% supported keeping a record of every British citizen’s fingerprints, and 59% supported a DNA database. 19

a. Emergency Legislation

Where there are new perceived risks, governments often respond with legislation. Emergency legislation, often employed in times of ‘perceived emergency’, enacts new laws in an ‘exceptional way’, 20 allowing for an expedited legal process and the creation of special executive powers justified as exceptional. 21 Emergency legislation introduced in the US after 9/11, such as the USA PATRIOT Act, was seen as necessary for national security. The same applies to counter-terrorism legislation following the 7/7 bombings in the UK, in the form of the Terrorism Bill

15 ‘Salisbury & Amesbury Investigation’, Counter Terrorism Policing, 15 August 2019, available at: www.counterterrorism.police.uk/salisbury/, last visited: 22 May 2020.

16 Poushter, J. and M. Fagan, ‘Americans See Spread of Disease as Top International Threat, Along With Terrorism, Nuclear Weapons, Cyberattacks’, Pew Research Center, 13 April 2020, available at: www.pewresearch.org/global/2020/04/13/americans-see-spread-of-disease-as-top-international-threat-along-with-terrorism-nuclear-weapons-cyberattacks/, last visited: 22 May 2020.

17 ‘Views of Government’s Handling of Terrorism Fall to Post-9/11 Low’, Pew Research Center, 15 December 2015, available at: www.people-press.org/2015/12/15/views-of-governments-handling-of-terrorism-fall-to-post-911-low/#views-of-how-the-government-is-handling-the-terrorist-threat, last visited: 22 May 2020.

18 Branigan, T., ‘Britons would trade civil liberties for security’, The Guardian Online, 22 August 2005, available at: www.theguardian.com/uk/2005/aug/22/july7.terrorism, last visited: 22 May 2020.

19 Smith, M., ‘Majority of Brits support introducing ID cards’, YouGov, available at: https://yougov.co.uk/topics/politics/articles-reports/2018/05/12/majority-brits-support-introducing-id-cards, last visited: 22 May 2020. The poll in 2018 would cover 2017, Britain’s ‘year of terror’, where 5 terror incidents occurred – see: McGuinness, A., ‘Britain’s year of terror: Timeline of attacks in 2017’, SkyNews Online, 15 September 2014, available at: https://news.sky.com/story/britains-year-of-terror-timeline-of-attacks-in-2017-11036824, last visited: 22 May 2020.

20 Neal, A. W., ‘Normalization and legislative exceptionalism: Counterterrorist lawmaking and the changing times of security emergencies’, International Political Sociology 6.3 (September 2012): pp.260-276.

21 This is consistent with the Copenhagen School of security studies, which suggests that security should not be seen as subjective or objective, but instead be seen as a speech act, where the central issue is not if threats are real or not, but the ways in which a certain issue can be socially constructed as a threat. For more, see: Cavelty, M.D., V. Mauer, and T. Balzacq (eds), ‘Constructivism and Securitization Studies’, Routledge Handbook of Security Studies (Abingdon: Routledge, 2010).


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introduced during the 2005-6 parliamentary session. 22 Such measures often come with expiration dates or ‘sunset clauses’ as a means to provide an opportunity for governments to re-evaluate legislation after the crisis has passed and adjust any policy where an infringement of civil liberties surpasses its perceived benefits. 23 In 2001, the USA PATRIOT Act included a number of sunset clauses that were renewed on different occasions to support the fight against terrorism. In the UK, multiple anti-terrorism statutes have included sunset clauses. Examples are the Prevention of Violence (Temporary Provisions) Act of 1939, the Prevention of Terrorism Act of 1979, and the Prevention of Terrorism Act of 2005. 24 Yet, the use of emergency legislation in the context of counter-terrorism policies has been criticised for several reasons.

The first is whether emergency legislation is necessary at all. Some academics, such as international security expert Andrew Neal, have argued that emergency legislation is often performative and utilised by politicians so that they can be seen to be doing something during a time of crisis. Political scientist Dr Andrew Blick and legal scholar Professor Clive Walker have argued that the Coronavirus Act 2020 lacks the protections and precautions built into the already existing Civil Contingencies Act 2004 (CCA). 25 They argue that Parliament’s power to review the Coronavirus Act is “extraordinarily confined” and that the framework set down in the CCA would have provided the powers needed to manage the pandemic, but with much stronger constitutional oversight. 26 Sunset clauses also do not counteract against two further risks: first, the endowment effect, when entities that benefit from the status quo, such as security agencies, may be unwilling to give up their new powers; and second, the need for a foreseeable end point. The threat of terrorism, for example, has continued over 20 years. The same may be the case with disease control and pandemics, as viruses take new forms, new outbreaks or follow-on waves occur, and citizens from different countries continue to be at risk of infection or re-infection.

The second issue with the use of emergency legislation is that it risks the ‘normalisation of the extraordinary’, a term – originally coined by law professor Oren Gross when discussing law in times of crisis – which describes the tendency of temporary emergency legislation to become permanent over time through repeated renewals. 27 Despite assurances by ministers who introduced the Northern Ireland (Emergency Provisions) Act 1973 (EPA) and the Prevention of Terrorism (Temporary Provisions) Act 1974 (PTA) that such legislation was temporary, the EPA and PTA were renewed annually until a “grand act of normalization represented by the Terrorism Act 2000 saw most of their ‘temporary’ and ‘exceptional’ powers put on a permanent and normalized footing”. 28 This may be because the threat from terrorism continues to persist, or because some aspects of the legislation are successful in combatting new threats. 29 The issue with placing emergency measures on a permanent footing, however, is that the exceptional

22 ‘Terrorism Act 2006’, UK Government, 30 March 2006, available at: www.legislation.gov.uk/ukpga/2006/11/pdfs/ukpgaen_20060011_en.pdf, last visited: 22 May 2020.

23 Berman, E., ‘The Paradox of Counterterrorism Sunset Provisions’, Fordham L. Rev. 81 (2012): p.1777.24 Ranchordás, S., ‘Sunset clauses and experimental regulations: blessing or curse for legal certainty?’, Statute Law Review 36.1

(2015): pp.28-45.25 ‘Coronavirus legislation ‘lacks constitutional protections’ of existing law’, King’s College London, 6 April 2020, available

at: www.kcl.ac.uk/news/coronavirus-legislation-lacks-constitutional-protections-of-existing-law, last visited: 22 May 2020.26 Ibid.27 Gross, O., ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’, 112 The Yale Law Journal 1011

(2003) pp.1089-1090.28 Neal, A. W., ‘Normalization and legislative exceptionalism: Counterterrorist lawmaking and the changing times of security

emergencies’, International Political Sociology 6.3 (2012): pp.260-276.29 In the US, the Inspector General for the Department of Justice reported there have been no instances in which the Patriot

Act has been invoked to infringe on civil rights or civil liberties. See US Department of Justice Office of the Inspector General, ‘Report to Congress on Implementation of Section 1001 of the USA Patriot Act’, 27 January 2004, available at: https://oig.justice.gov/special/0401a/final.pdf, last visited: 22 May 2020. See also Rosenzweig, P., ‘Civil liberty and the response to terrorism’, Duq. L. Rev. 42 (2003): p.665.


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scrutiny in the form of the sunset clauses disappears. To avoid this risk, the Terrorism Act 2006 implemented reviews through placing an Independent Reviewer of Terrorism Legislation on a statutory footing. 30

30 The first Independent Reviewer of Terrorism Legislation was appointed in 1984 (Sir Cyril Phillips). The office was placed on a fully statutory footing in 2005.


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3. Policing and Coercive Control

a. National Security Determinations

The Coronavirus Act 2020, which became law in the UK on 25 March 2020, introduced legal measures to help the government implement a response to the pandemic. The legislation is time limited to two years, and not all measures came into force immediately. 31 A variety of measures have been employed in the US, which differ on a state-by-state basis. 32 In late April, House Democrats sought to establish a new select committee to investigate coronavirus spending, and to examine US preparedness in handling the crisis. 33

Legislation has both changed and increased the remit of some powers. Sections 22 and 23 of the UK’s Coronavirus Act, for example, allow for temporary changes regarding ‘investigatory powers’. This would cover, in particular, the power that needs to be exercised in response to the effects that coronavirus is having, or is likely to have, on the capacity of judicial commissioners to carry out their functions, and the creation of a temporary commissioner to fulfil this purpose if required. Section 24 focuses on the extension of time limits for the retention of fingerprints and DNA profiles, and how long these may be held by the police. Under current counter-terrorism regulation, fingerprints and DNA profiles are retained in accordance with national security determinations relating to police and criminal evidence (terrorism prevention and investigation measures (TPIMs), for example). If coronavirus is having, or is likely to have, an adverse effect on the capacity of persons responsible for making national security determinations to consider whether to make, or renew, national security determinations, and it is determined that it is in the interests of national security to retain fingerprints or DNA profiles, this timeline may be extended. As such, it is important that any data held past time limits continues to be monitored by an independent reviewer.

b. Detention and Trials

Sections 23 to 27 of the UK’s Coronavirus Act pertain to the courts and tribunals, and the use of video and audio technology during the pandemic. While video conferencing during trials has been employed in the UK, it is still an exception in the US. 34 However, the COVID-19 pandemic has forced federal courts in the US to adopt video or phone to handle cases, insofar as they have been closed. This has raised concerns over the ability of courts to step in and overrule state-level emergency actions and restrictions, and the effect this would have on civil liberties. 35 A recent draft proposal by the Department of Justice, for example, requested that top judges be granted broad authority to pause proceedings during emergencies – which has potential implications for habeas corpus, the constitutional right to appear before a judge after arrest and seek release. 36 In the UK, interim guidance has been issued by the Crown

31 Measures introduced in the bill are seen as temporary and proportionate. See: ‘What the Coronavirus Bill will do’, UK Government, 26 March 2020, available at: www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/ what-the-coronavirus-bill-will-do, last visited: 22 May 2020.

32 Friedersdorf, C., ‘How to Protect Civil Liberties in a Pandemic’, The Atlantic Online, 24 April 2020, available at: www.theatlantic.com/ideas/archive/2020/04/civil-libertarians-coronavirus/610624/, last visited: 22 May 2020.

33 ‘House Democrats establish coronavirus spending committee’, CNN Online, 22 April 2020, available at: https://edition.cnn.com/2020/04/22/politics/read-resolution-house-spending-committee/index.html, last visited: 22 May 2020.

34 Sarat, A., ‘Coronavirus: Will courts continue to operate, preserving the rule of law?’, The Conversation, 2020, available at: https://theconversation.com/coronavirus-will-courts-continue-to-operate-preserving-the-rule-of-law-134084, last visited: 22 May 2020.

35 Wolf, R., ‘Government intrusions on civil liberties during pandemic raise risks, rewards’, USA Today Online, 9 April 2020, available at: https://eu.usatoday.com/story/news/politics/2020/04/09/coronavirus-pandemic-restrictions-limit-church- guns-abortion-travel/2968516001/, last visited: 22 May 2020.

36 Swan, B. W., ‘DOJ seeks new emergency powers amid coronavirus pandemic’, POLITICO, 21 March 2020, available at: https://www.politico.com/news/2020/03/21/doj-coronavirus-emergency-powers-140023, last visited: 22 May 2020.


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37 National Police Chiefs’ Council, ‘Interim CPS Charging Protocol – Covid-19 crisis response’, UK Government, available at: www.cps.gov.uk/sites/default/files/documents/legal_guidance/Interim-CPS-Charging-Protocol-Covid-19-crisis-response.pdf, last visited: 22 May 2020.

38 Chan, M., ‘‘It Will Have Effects for Months and Years.’ From Jury Duty to Trials, Coronavirus Is Wreaking Havoc on Courts’, Time Magazine Online, 16 March 2020, available at: https://time.com/5803037/coronavirus-courts-jury-duty/, last visited: 22 May 2020. Prior to COVID-19, there was a backlog of more than 37,400 crown court cases. See: Dearden, L., ‘Coronavirus: Fewer prisoners to face prison due to outbreak’, The Independent, 14 April 2020, available at: www.independent.co.uk/news/uk/crime/coronavirus-uk-prison-crime-cps-trial-charge-a9465061.html, last visited: 22 May 2020.

39 Chan, M., ‘‘It Will Have Effects for Months and Years.’ From Jury Duty to Trials, Coronavirus Is Wreaking Havoc on Courts’, Time Magazine Online, 16 March 2020.

40 Parker, N. et al., ‘Spread of coronavirus accelerates in U.S. jails and prisons’, Reuters, 28 March 2020, available at: www.reuters.com/article/us-health-coronavirus-usa-inmates-insigh-idUSKBN21F0TM, last visited: 22 May 2020.

41 Ibid.42 Bulman, M., ‘Coronavirus: Number of cases in prisoners may be seven times higher than thought, report finds’,

The Independent, 28 March 2020, available at: www.independent.co.uk/news/uk/home-news/coronavirus-uk-cases-prison-inmates-jail-public-health-england-latest-a9487626.html, last visited: 22 May 2020.

43 Ibid.44 Ibid.45 See Channel 4 report, and tweet by Simon Israel: “337 tested positive in 71 prisons and 337 staff in 63 prisons. Large

caveat though since many more prisoners are suspected to have contracted the virus but not tested.”: Israel, S., Twitter, 29 April 2020, available at: https://twitter.com/simonisrael/status/1255513073676402688, last visited: 22 May 2020.

46 Coffey, D., ‘The Coronavirus Act 2020: When Legislation Goes Viral (Part Two)’, UK Human Rights Blog, 10 April 2020, available at: https://ukhumanrightsblog.com/author/darraghcoffey/, last visited: 22 May 2020.

Prosecution Service (CPS) to identify three categories of risk to be managed by the police and the CPS, based on priority (immediate, high priority, and other). Immediate cases focus on COVID-19-related concerns (such as fraud related to COVID-19, attacks, and robbery), serious crime, and offences under the Terrorism Act. 37 Critics of current lockdown conditions have highlighted how closing courtrooms will cause delays that will add to an existing backlog of cases. 38 Delays may mean defendants remain in overcrowded jails, and will be more likely to take plea bargains instead of continuing to wait for trials. 39

The US moved quickly to release low-level, non-violent inmates from detention in order to avoid COVID-19 outbreaks in prison. 40 This decision may be based on the alarming rate at which infections had already been occurring, due to overcrowding, in US prisons. 41 The UK, meanwhile, undertook a similar initiative, but this was beset by problems. In early April, the Ministry of Justice (MoJ) announced that nearly 4,000 prisoners, who were within two months of their release date and had passed a risk assessment, would be released early. 42 However, in the days following the announcement the release scheme was temporarily suspended after six inmates were mistakenly freed and then recalled. 43 Only 33 inmates had been released under the emergency release programme by the end of April – less than 1% of prisoners eligible for the scheme. 44 As face-to-face meetings violate social distancing requirements, new protocols have been put in place to monitor those freed from prison. There are also concerns around the ability of prison staff to cope; in April 2020, the number of prisoners and prison staff testing positive with COVID-19 was the same. 45

c. Powers Related to Infectious Persons

Section 51 of the UK Coronavirus Act focuses on powers relating to potentially infectious persons, specifically that public health officers can require a potentially infectious person to undergo screening and assessment and can impose certain restrictions and requirements on them. Section 52 concerns powers to issue directions relating to events, gatherings, and premises. These are broad powers and have the potential to affect freedom of movement. Their use is likely to involve restrictions on liberty, rather than deprivations, and they are therefore compatible with the UK’s obligations under the European Convention on Human Rights (ECHR). 46 Nonetheless, there have been early indications that these powers may be too broad. Reports have been made of ‘over-policing’ public gatherings and social events, including with


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47 Dodd, V., ‘Police leaders say enforcing UK lockdown may be impossible’, The Guardian Online, 24 March 2020, available at: www.theguardian.com/global/2020/mar/24/police-leaders-say-enforcing-uk-lockdown-may-be-impossible, last visited: 22 May 2020. and Bienkov, A., ‘UK police officers are using drones to ‘lockdown shame’ people for walking their dogs in remote areas during the coronavirus outbreak’, Business Insider, 27 March 2020, available at: www.businessinsider.com/coronavirus-uk-police-are-using-drones-to-lockdown-shame-walkers-2020-3?r=US&IR=T, last visited: 22 May 2020.

48 Brunt, M., ‘COVID-19: Woman convicted under Coronavirus Act was ‘wrongly charged’’, Sky News Online, 3 April 2020, available at: https://news.sky.com/story/covid-19-woman-convicted-under-coronavirus-act-was-wrongly-charged-11967745, last visited: 22 May 2020.

49 ‘Covid-19: Man wrongly convicted under Coronavirus Act’, Evening Express, 14 April 2020, available at: www.eveningexpress.co.uk/news/uk/covid-19-man-wrongly-convicted-under-coronavirus-act/, last visited: 22 May 2020.

50 See, for example: Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, ‘Counter-terrorism policing – An inspection of the police’s contribution to the government’s Prevent programme’, UK Government Website, 9 March 2020, available at: www.justiceinspectorates.gov.uk/hmicfrs/publications/counter-terrorism-policing-an-inspection-of-the-polices-contribution-to-the-governments-prevent-programme/, last visited: 22 May 2020.

51 Dodd, V., ‘Police leaders say enforcing UK lockdown may be impossible’, The Guardian Online, 24 March 2020.52 ‘Coronavirus: Man jailed for police officer cough assault’, BBC News, 7 April 2020, available at: www.bbc.co.uk/news/uk-

england-london-52203774, last visited: 22 May 2020; and ‘Extremist groups encourage members to spread coronavirus to police, Jews: FBI alert’, abc7News, 23 March 2020, available at: https://abc7news.com/neo-nazis-encourage-members-to-spread-covid-19-fbi-alert/6038813/, last visited: 22 May 2020.

53 Spocchia, G., ‘Coronavirus: People who intentionally spread Covid-19 could be charged at terrorists’, The Independent, 25 March 2020, available at: www.independent.co.uk/news/world/americas/us-politics/coronavirus-cases-us-spread-outbreak-criminal-charges-terrorism-a9424426.html, last visited: 22 May 2020.

54 Cheema, M., and Deeks, A., ‘Prosecuting Purposeful Coronavirus Exposure as Terrorism’, Lawfare, 31 March 2020, available at: www.lawfareblog.com/prosecuting-purposeful-coronavirus-exposure-terrorism, last visited: 22 May 2020.

the use of technology such as drones. 47 There have also been errors, with individuals being charged under incorrect sections of the Act, 48 and the category of ‘potentially infectious persons’ being incorrectly applied. 49 It is therefore essential that a system of oversight is created to ensure that police are complying with existing structures. Under the UK counter-terrorism strategy CONTEST, strong independent oversight is achieved through the publishing of annual reports by the Independent Reviewer of Terrorism Legislation, the Biometrics Commissioner, and the Investigatory Powers Commissioner. Publicly available inspections are also released by Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), which puts forward recommendations to further improve policing. 50 As such, if new legislation is to continue to affect civilians, it will be important to mirror this model and follow a system of rules and oversight for compliance.

In the few days after government announcements were made regarding changes to police powers in March 2020, phone lines were inundated with calls from the public. 51 Therefore, a risk exists that police officers will be overstretched when it comes to policing lower-order offences (such as civilians flouting government-issued guidance and continuing to socialise in large numbers), or that resources will be wasted on policing minor threats. This is coupled with an increased risk of infection. Unfortunately, there have been a number of incidents in the UK and the US where civilians have attempted to cough on officers and infect them with the virus, and a number of videos circulating online where malicious actors have advised civilians to infect individuals who work at public institutions in order to add stress to those operating at maximum capacity. 52 In the US, this risk has been met with the decision to prosecute those who intentionally spread COVID-19 under counter-terrorism legislation, as the virus meets the statutory definition of a ‘biological agent’. 53 There are issues with this approach, however, including lack of intent and political motive. Previous cases covered under such legislation have included the deliberate use of anthrax as a biological weapon in order to target particular groups (such as politicians) for specific purposes. Expanding the law beyond common-law assault has implications for the punishment being proportionate to the offence. Unlike many federal terrorism statutes, the criminalisation of the use of a weapon of mass destruction does not require the government to prove that the offence contains a transnational or foreign element. 54 As a result, an infected person who maliciously coughs on someone may be charged as a terrorist, even if they have no links to a terrorist organisation. If found guilty of the offence,


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55 Cheema, M., and Deeks, A., ‘Prosecuting Purposeful Coronavirus Exposure as Terrorism’, Lawfare, 31 March 2020, available at: www.lawfareblog.com/prosecuting-purposeful-coronavirus-exposure-terrorism, last visited: 22 May 2020.

56 Chesney, R., ‘Should We Create a Federal Crime of ‘Domestic Terrorism’?’, Lawfare, 8 August 2019, available at: www.lawfareblog.com/should-we-create-federal-crime-domestic-terrorism, last visited: 22 May 2020.

the individual in question could face imprisonment up to life, or, when the offence causes death, the death penalty. 55 As people may not be aware that they are committing a terrorist act, a specific statute would need to be created by Congress to cover such behaviour as a category of terrorism, and to criminalise it accordingly. Instead, a wide array of general-purpose state criminal laws: murder, attempted murder, conspiracy, and destruction of property, for instance, could be applied to COVID-19 infection cases instead of common assault or terrorism. 56


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4. Data Collection, Surveillance, and Security

a. Data Mining

Data mining is the process of extracting useful patterns and trends from large amounts of data, using various techniques such as pattern recognition and machine learning. As a result, it has been used to understand and prevent terrorist activity and fraudulent behaviour, often as part of a broader knowledge discovery process. 57 Non-Obvious Relationship Awareness (NORA), for example, is a system developed with the purpose of identifying potential threats to Las Vegas casinos. NORA collects data about casino players, guests, employers, and vendors, and cross-references this information with subjects of interest, such as problem gamblers. Data mining in this way seeks to identify subjects of interest, but also employees and customers who may be connected to subjects of interest in a non-obvious way. 58 In the past, similar frameworks have been proposed for countering terrorism, but have been met with stronger privacy concerns.

A 2002 opinion piece in The New York Times by American author William Safire, titled ‘You Are a Suspect’, detailed new plans for a programme within the Defense Advanced Research Project Agency (DARPA) to create a centralised database containing information on citizens that could be used to data mine for various purposes, including security concerns. 59 The article led to the creation of a blue-ribbon committee around privacy concerns, the Technology and Privacy Advisory Committee (TAPAC), and the eventual cancellation of the programme itself. 60 Similar concerns have been raised in the UK around data retention following the introduction of blanket emergency legislation. Part 11 of the UK Anti-Terrorism, Crime and Security Act 2001, for example, allows for the automated surveillance of the private lives of a proportion of the population by analysing patterns within their communications. Powers introduced following national crises can therefore be deliberately broad, and oversight mechanisms are necessary to protect against their exercise being extended from terrorist investigations to matters involving the wider population. In the UK, some of these concerns have been alleviated by data privacy rules under the European Union’s (EU’s) General Data Protection Regulation (GDPR). However, exceptions exist for ‘vital interests’ (where processing is necessary to protect someone’s life). 61

As countries ease lockdown restrictions imposed in response to COVID-19, a trade-off for the liberty of free movement may be greater accessibility of civilian data. In at least 23 countries, dozens of ‘digital contact tracing’ apps have been downloaded more than 50 million times. Authorities in the UK and other countries, meanwhile, have deployed drones with video equipment and temperature sensors to track those who have broken lockdown restrictions by being outside their homes. 62 In the US, a task force of data mining start-ups and technology companies is currently working with the White House to develop a range of tracking and

57 Thuraisingham, B., ‘Data mining for counter-terrorism’, Data Mining: Next Generation Challenges and Future Directions (Menlo Park, American Association for Artificial Intelligence, 2004): pp.157-183.

58 Rosenzweig, P., ‘Privacy and counter-terrorism: The pervasiveness of data’, Case W. Res. J. Int’l L. 42 (2009): p.625.59 Safire, W., ‘You Are a Suspect’, The New York Times Online, 14 November 2002, available at: www.nytimes.com/2002/11/14/

opinion/you-are-a-suspect.html, last visited: 22 May 2020.60 Rosenzweig, P., ‘Privacy and counter-terrorism: The pervasiveness of data’, Case W. Res. J. Int’l L. 42 (2009): p. 625. In the

United States, a blue-ribbon committee is a group of people appointed to investigate a given question, and generally has a degree of independence from political influence.

61 Information Commissioner’s Office, ‘Guide to the general data protection regulation (GDPR)’, 2018, available at: https://ico.org.uk/media/for-organisations/guide-to-the-general-data-protection-regulation-gdpr-1-0.pdf, last visited: 22 May 2020.

62 Vogt, R.J., ‘How Virus Surveillance And Civil Liberties Could Collide’, Law360, 26 April 2020, available at: www.law360.com/access-to-justice/articles/1267269/how-virus-surveillance-and-civil-liberties-could-collide?nl_pk= ea0e2cd0-bc8f-43de-8128-c475d9eb4d61&utm_source=newsletter&utm_medium=email&utm_campaign=access-to-justice&read_more=1, last visited: 22 May 2020.


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63 Grind, K. and R. Winkler, ‘Silicon Valley Ramps Up Efforts to Tackle Virus’, The Wall Street Journal, 15 March 2020, available at: www.wsj.com/articles/silicon-valley-ramps-up-efforts-to-tackle-virus-11584313224?mod=article_inline, last visited: 22 May 2020.

64 McCarthy, K., ‘UK snubs Apple-Google coronavirus app API, insists on British control of data, promises to protect privacy’, The Register, 28 April 2020, available at: www.theregister.co.uk/2020/04/28/uk_coronavirus_google_apple_api/, last visited: 22 May 2020.

65 Grind, K., R. McMillan, and A. W. Mathews, ‘To Track Virus, Governments Weigh Surveillance Tools That Push Privacy Limits’, The Wall Street Journal, 17 March 2020, available at: www.wsj.com/articles/to-track-virus-governments-weigh-surveillance-tools-that-push-privacy-limits-11584479841, last visited: 22 May 2020.

66 Lewis, P., D. Conn, and D. Pegg, ‘UK government using confidential patient data in coronavirus response’, The Guardian Online, 12 April 2020, available at: www.theguardian.com/world/2020/apr/12/uk-government-using-confidential-patient-data-in-coronavirus-response, last visited: 22 May 2020.

67 Rosenzweig, P., ‘Privacy and counter-terrorism: The pervasiveness of data’, Case W. Res. J. Int’l L. 42 (2009): p.625.68 ‘Disrupting Terrorist Travel: Implementation of Passenger Name Record (PNR) Advance Passenger Information (API)

Requirements of UNSCR 2396’, United Nations Website, 28 June 2018, available at: www.un.org/sc/ctc/wp-content/uploads/2018/06/UN-HLC-APIPNR-Side-Event-Concept-Note.pdf, last visited: 22 May 2020.

surveillance technologies to fight COVID-19. 63 The UK has decided to break with growing international consensus; its upcoming coronavirus contact tracing app will be run through centralised British servers – rather than a decentralised server from an existing technology company such as Apple or Google. 64 Unlike a decentralised approach where such data would be anonymised and protected (through an opt-in privacy option, where the phone periodically changes its ID), the NHS has been keen to stress that it will protect people’s privacy, despite granting itself real-time location tracking. Other ideas being considered include geolocation tracking of people using data from their phones, and facial recognition systems to determine who has come into contact with individuals later tested positive for the virus. 65 The US-firm Palantir is working with Faculty, a British artificial intelligence company, to consolidate government databases and help ministers and officials respond to the pandemic. 66 Such methods have raised concerns around ‘surveillance creep’, where intrusive powers are expanded or data is used to prosecute for a range of crimes. Data used to build predictive or preventative computer models around the COVID-19 outbreak, therefore, comes with various issues, the most important of which surround privacy and accuracy. Here, past experiences with collection of data around prevention of terrorism can offer some lessons learned.

b. Privacy

An essential aspect of the UK Coronavirus Act 2020 focuses on containing and slowing the virus by reducing unnecessary social contact. The measures it introduces to achieve this represent an erosion of safeguards placed on important and potentially intrusive investigatory powers. One example of data being used to prevent terrorism which is relevant to privacy concerns around data sharing for COVID-19 is aviation security. The US, for instance, uses the Automated Targeted System (ATS), which assesses comparative risks of arriving passengers. Knowledge discovery techniques within this system have been employed to create risk assessments and to target investigative resources. The academic Paul Rosenzweig cites the example of such data being used to flag a subject of interest – suicide bomber Raed al Banna – who was denied entry to the US, but whose biometrics and fingerprints were used to later identify him as part of a bomb attack in Iraq. 67 Unlike other data collection methods, however, when it comes to terrorism, data collection often occurs without the knowledge or consent of the data subject.

Similar data collection techniques may be employed in the sharing of information between countries on potential individuals who are carrying disease, or who may be at risk due to their travel. Unlike in the context of terrorism, where countries are working to share information against a foreign entity or actor (under United Nations Security Council Resolution 2396, 68 for example), countries will be required to collaborate in order to contain the spread of disease. Concerns around the accuracy of data shared by China and other countries in the early stages of the pandemic, however, raise issues around this initiative, and a new international body may need


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69 Kuo, L., ‘China denies cover-up as Wuhan coronavirus deaths revised up 50%’, The Guardian Online, 17 April 2020, vailable at: www.theguardian.com/world/2020/apr/17/china-denies-cover-up-as-wuhan-coronavirus-deaths-revised-up-50, last visited: 22 May 2020; and Recchia, G. and H. Belfield, ‘Climate change, pandemics, biodiversity loss: no country is sufficiently prepared’, The Conversation, 1 November 2019, available at: https://theconversation.com/climate-change-pandemics-biodiversity-loss-no-country-is-sufficiently-prepared-123466, last visited: 22 May 2020.

70 ‘U.S. Attorney General Criticized GDPR in Light of Terrorist Attacks’, International Association of Privacy Professionals, 9 December 2015, available at: https://iapp.org/news/a/u-s-attorney-general-criticizes-gdpr-in-light-of-terrorist-attacks/, last visited: 22 May 2020. Suspicion of terrorism financing or money laundering also falls under substantial public interest conditions – see ‘Special category data’, Information Commissioner’s Office, available at: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/special-category-data/, last visited: 22 May 2020.

71 Hymas, C., ‘EU privacy laws will protect paedophiles seeking to groom children online’, The Telegraph, 6 November 2019, available at: www.telegraph.co.uk/news/2019/11/06/eu-privacy-laws-will-protect-paedophiles-seeking-groom-children/, last visited: 22 May 2020; and McIntyre, N. and D. Pegg, ‘Councils use 377,000 people’s data in efforts to predict child abuse’, The Guardian Online, 16 September 2018, available at: www.theguardian.com/society/2018/sep/16/councils-use-377000-peoples-data-in-efforts-to-predict-child-abuse, last visited: 22 May 2020.

72 Sabbagh, D., ‘Calls for backdoor access to WhatsApp as Five Eyes nations meet’, The Guardian Online, 30 July 2019, available at: www.theguardian.com/uk-news/2019/jul/30/five-eyes-backdoor-access-whatsapp-encryption, last visited: 22 May 2020.

73 Malik, N., ‘We must be cautious about using AI to prevent crime’, The Times, 14 November 2018, available at: www.thetimes.co.uk/article/we-must-be-cautious-about-using-ai-to-prevent-crime-r9x7l593w, last visited: 22 May 2020.

74 Jonas, J. and J. Harper, ‘Effective counterterrorism and the limited role of predictive data mining’, Cato Institute, 11 December 2006, available at: www.cato.org/publications/policy-analysis/effective-counterterrorism-limited-role-predictive-data-mining, last visited: 22 May 2020.

75 Rosen, J., The Naked Crowd, (New York: Random House, 2004): pp. 104–7; and Jonas, J. and J. Harper, ‘Effective counterterrorism and the limited role of predictive data mining’, Cato Institute, 11 December 2006.

to ensure that some countries avoid the temptation to coast while hoping that other countries will pick up the slack. 69 It would also be useful for countries who have employed surveillance techniques to sign a code of practice to ensure that data analysis has sufficient oversight.

In the past, the US has highlighted concerns that the provisions on trans-border data flows from GDPR regulations have made collaboration on combatting terrorism more difficult. 70 Similar concerns may be raised when it comes to sharing information on those individuals who could be travelling across borders and spreading disease. Strict data protection rules have also been criticised for protecting the interests of criminals over their victims, and privacy concerns have been raised over the use of predictive models to provide protective services in relation to child abuse happening at home. 71 When it comes to terrorism, countries have called for backdoors on encrypted apps time and again. 72

c. Accuracy

Unlike arrests that happen in person, artificial algorithms that use large forms of surveillance lack context for the data collected, which may lead to inaccurate inferences. 73 Such potential for false positives and false negatives carries greater risks in the realm of disease control and terrorism prevention than, say, in identifying a shopper’s preferences. Unlike data mining techniques that may be used to understand consumer preferences on Amazon, for example, data mining to prevent terrorist attacks and contain the spread of disease has a great sense of urgency and greater impact if things go wrong. The academics Jeff Jonas and Jim Harper cite the example of a test for a disease that is able to accurately detect the disease 99% of the time, and inaccurately predicts it 1% of the time (a false positive). If 0.1% of the population has the disease (and the only way to confirm the presence of the disease is with a biopsy) in a population of 300 million people, 300,000 people would have the disease, but ten times that number (nearly 3 million people) would have to undergo an unnecessary biopsy. 74 In his book The Naked Crowd, Jeffrey Rosen, a professor in law at George Washington University, discusses false positive rates in a system that might have been designed to identify the 19 hijackers involved in the 9/11 attacks. Assuming a 99% accuracy rate, searching a population of nearly 300 million (the US population in 2001 was 285 million) would mean approximately 3 million people would be identified as potential terrorists. 75


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5. Policy Recommendations and Looking Ahead

Much like responses to terrorism, the response to COVID-19 has involved navigating the balance between civil liberties and national security. As such, this report puts forward the following policy recommendations, based on historical approaches to countering terrorism:

As within counter-terrorism efforts, monitoring the spread of the pandemic and potential carriers of disease following easing on lockdown restrictions will require greater security, particularly aviation security across borders.

1. On an international level, the UN should build on A/RES/74/270 ‘Global solidarity to fight the coronavirus disease 2019 (COVID-19)’, 76 adopted on 2 April 2020, to create a tighter framework to contain the spread of disease, as it has done with international counter-terrorism aviation requirements (UNSCR 2396) 77 and financial sanctions on terrorists in the past (UNSCR 2462). 78

2. The UK should hone its current framework of Advanced Passenger Information (API) to ensure that carriers of disease are contained and that risks are mitigated when it comes to border security. Further training in this regard will be required by the UK Border Agency (UKBA).

3. The US should build on its Automated Targeted System (ATS), which assesses comparative risks of arriving passengers, and ensure that knowledge discovery techniques within this system that have been employed to create risk assessments on potential terrorist threats are used to assess carriers of disease or at-risk passengers.

If coronavirus legislation continues to be in force for more than two years, or some legislation becomes permanent, continued scrutiny of the new powers the legislation creates and their impact on civil liberties will be vital.

1. The UK government should create a new Independent Reviewer of Pandemic Legislation, Preparedness, and Data Use.

i. If emergency legislation on COVID-19 remains in force for longer than two years, or part of the emergency legislation is made permanent, a new Independent Reviewer of Pandemic Legislation should review and publish insights into the legislation, as was the case with the Independent Reviewer of Terrorism Legislation.

ii. Part of the remit of the new Independent Reviewer of Pandemic Legislation should be to expand and update guiding principles regarding surveillance and data collection for the purposes of countering COVID-19. Two years after the Home Office announced in their Biometrics Strategy that the Surveillance Camera Code of Practice would be updated, this has not been done, and the Code is not moving in pace with technology. 79

76 The General Assembly of the United Nations, ‘Resolution adopted by the General Assembly on 2 April 2020’, United Nations Website, 3 April 2020, available at: https://undocs.org/en/A/RES/74/270, last visited: 22 May 2020.

77 United Nations Security Council, ‘Resolution 2396 (2017). Adopted by the Security Council at its 8148th meeting, on 21 December 2017’, United Nations Website, 21 December 2017, available at: https://undocs.org/S/RES/2396(2017), last visited: 22 May 2020.

78 United Nations Security Council, ‘Resolution 2462 (2019). Adopted by the Security Council at its 8496th meeting, on 28 March 2019’, United Nations Website, 28 March 2019, available at: https://undocs.org/en/S/RES/2462(2019), last visited: 22 May 2020.

79 Porter, T., ‘Surveillance and Covid-19: Lessons to be learnt’, Surveillance Camera Commissioner’s Office, 21 April 2020, available at: https://videosurveillance.blog.gov.uk/2020/04/21/surveillance-and-convid-19-lessons-to-be-learnt/, last visited: 22 May 2020.


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iii. Where data needs to be utilised by governments to monitor activities, it is essential to create greater public accountability by enhancing transparency. To do this, existing privacy legislation (such as the Data Protection Act 2018) must be adapted to match the speed of technological reality. For example, the use of apps for health monitoring purposes could be subject to independent review, as was the case with the review of the UK’s Investigatory Powers Bill, led by the Independent Reviewer of Terrorism Legislation. 80

iv. Where data on suspects of interest is held longer due to COVID-19 delays, or prisoners are released early because of COVID-19 concerns, such decisions must be assessed and made publicly available, in a similar way to the Independent Reviewer of Terrorism Legislation reviews on investigatory powers. 81

v. The UK government should commission an independent review of the laws governing state surveillance, and it should combine all matters of state surveillance regulation within a single regulatory body with judicial leadership, powers of inspection, and powers of sanction. The new Independent Reviewer of Pandemic Legislation should sit on this new regulatory body.

vi. Any independent reviewer, protection officer, or oversight board should monitor where common assault arrests have gone wrong in the UK and feed these factors into a police review board.

2. In the US, an internal watchdog or independent position should be created to review the effectiveness and preparedness of the government’s response to COVID-19.

i. A civil liberties protection officer or oversight board should be created to issue guidelines and develop a system that protects privacy and civil liberties in the development of the use of data in response to COVID-19. To enhance transparency and oversight, guidelines should be made public.

ii. Any independent reviewer, protection officer, or oversight board should monitor where terrorism legislation has been used in place of common assault, and feed these factors into a police review board.

iii. Federated data mining can be carried out under a federal administrator to ensure agencies have autonomy.

iv. It is essential that any data systems to process potential risks, which either use artificial algorithms or investigatory powers (or a combination of both), are accurate and transparent to the general public.

3. On an international level, UN Resolution 74/270 should be expanded to ensure that countries who have employed surveillance techniques or data mining mechanisms to contain the spread of COVID-19 sign an international code of practice to ensure that data analysis has sufficient oversight and public transparency.

The results of counter-terrorism exercises have been made public by reports released by the Independent Reviewer of Terrorism Legislation. Similar results should be made available by a new Independent Reviewer of Pandemic Legislation.

80 Martin, A. J., ‘Labour scores review of Snoopers’ Charter’s bulk powers from UK.gov’, The Register, 25 May 2016, available at: www.theregister.co.uk/2016/05/25/labour_scores_review_of_snoopers_charter_bulk_powers_from_ukgov/, last visited: 22 May 2020.

81 Anderson, D., ‘A Question of Trust. Report of the investigatory powers review’, June 2015, available at: https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2015/06/IPR-Report-Web-Accessible1.pdf, last visited: 22 May 2020.


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1. The results of pandemic preparedness exercises in the UK and US should be made publicly available, and opportunities for improvement made transparent. This may entail greater involvement from existing intelligence and policing apparatuses.

2. The Joint Terrorism Analysis Centre (JTAC) in the UK, for example, is responsible for assessing the level and nature of the threat from international terrorism. A similar threat level model was announced by the UK government in May 2020, but this should be expanded to incorporate preparedness towards pandemics and other forms of diseases, and such results should be fed into strategic priorities for catastrophic risks. It will be important to communicate threat levels to the public in a consistent way; a model such as the US’s America’s Missing: Broadcast Emergency Response (AMBER) alert should be used to communicate news to the public for high-impact threat levels.

3. Where the military and police forces need to intervene to provide assistance in pandemic preparedness and response, it is essential that a policing review board is in place to ensure that lessons are learned from responses to the pandemic and any improvements stemming from these lessons are communicated to the public. A feedback mechanism whereby recommendations can be incorporated into existing systems, as is the case with Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), which puts forward recommendations to further improve policing in the realm of counter-terrorism, could be employed.

Disease control and terrorism should be examined together, particularly when it comes to areas of defence and military funding, and where nefarious actors may use disease to increase power.

1. Certain divisions of the policing forces in the UK and the US deal with existing capabilities to detect terrorist activity involving Chemical, Biological, Radiological, Nuclear and Explosive (CBRNE) materials and their precursors, and to control and safeguard these materials. While the pandemic does not present itself as a CBRNE issue, it is clear that existing counter-terrorism legislation is being employed to prosecute against purposeful acts of spreading COVID-19. In the future, lessons from responses to CBRNE risks should be applied in responses to global pandemics, particularly around new provisions on health and protective equipment. It will also be important that policing systems are able to deal with ‘double threats’; terrorists, for example, planning to attack hospitals and other vulnerable areas. Systems and processes improvements will be necessary to ensure that planning is done to prepare for lockdown ease.

2. Defence agencies should examine catastrophic and global threats that affect everyone, and that may need a synchronised approach between countries rather than the current approach of a nation preparing itself for threats from a single foreign entity or from domestic extremism. As such, pandemic preparedness departments in the US and the UK should receive more funding. Further departments, such as bio-preparedness within Homeland Security, and CBRNE within UK policing, may also require more funding to understand the use of pandemic as a bioweapon.

3. Concerns around the accuracy of data shared by countries such as China during the early stages of the pandemic raise issues. An international body such as the UN will need to ensure that countries avoid reporting inaccurate numbers, as this will affect the global system of preparedness and response and have long-term effects on power relations. Non-compliance should be met with similar responses to non-compliance for nuclear weapons; for example, the use of sanctions.

Title: “LEAVING LOCKDOWN: THE IMPACT OF COVID-19 ON CIVIL LIBERTIES AND NATIONAL SECURITY IN THE UK & US” By Nikita Malik

© The Henry Jackson Society, 2020

The Henry Jackson SocietyMillbank Tower, 21-24 MillbankLondon SW1P 4QP, UK

www.henryjacksonsociety.org

May 2020





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