What balance do we want to choose between security, privacy and fundamental freedoms?
During this peculiar period (#Covid19), I will reflect on articles shared on LinkedIn or in the press to engage into this process. This is a Limited Series called ‘What Society do we want?’
This is an interesting period of time. Every day offers opportunities to question oneself and to revert back to the fundamentals of the Rule of Law and to start shifting our attention to what matters: what kind of society do we want to build?
On Friday, I reflected on the binary choice according to which we are doomed to fail as a civilization or to continue to insanely push the capitalist system to its edge hoping that our current political and economic system will last until the next generation inherits it.
This morning, I was engaged in a very brief exchange within a WhatsApp Group on the legitimacy, proportionality and necessity to have a curfew in a city of a little less than 45,000 inhabitants with a very low criminality rate and in which you could say than 95% of the population has respected the official recommendations issued by the French Government.
This very brief exchange was also a good summary and in continuity with an experience I had recently during a political process I participated in. Through this process I have witnessed first-hand that we are very much influenced by our beliefs and perceptions to the point that our political beliefs are much more than political opinions – but rather the manner we see the world and perceive others. Depending of your political beliefs, your rapport to individuals and the role of State is fundamentally different: Victims versus Oppressors. Freedom versus Coercion. Safety versus Security.
As a mediator and conflict expert, I already knew everyone has its own perception of the world, which in our polarized society has translated into an increase of identity-based conflicts and rise of fundamentalism. Yet, thanks to this political process, another veil disappeared for me.
Little did I know that this conversation will find a resonance in the article of my peer Mr Andrea RENDA entitled ‘Will privacy be one of the victims of COVID-19?’. Andrea questions what would be our collective assessment as State-Nations to what is necessary and proportionate in the face of the Corona virus crisis?
In law, and in democracies, there is a constant and normal tension between fundamental rights. Constant trade-offs have to be made. Depending of the scope, scale, intensity and possible impact of a situation, the arbitration will be made by individuals in their life, by legal practitioners, by local or regional public entities, by states or a group of states e.g. The European Union, and/or by the International community when multilateral trade-offs have to be made to preserve global peace and the fundamental rights of the universal declaration of human rights and the United Nations Charter.
In a crisis like the Corona virus, the tensions between various fundamental rights is extremely high and heightened by the uncertainty and the possible disastrous impact on the number of casualties if a state fails to make the best decision at a certain moment in time.
There is no denying that trade-offs should be made. There is also no denying that the test of necessity and proportionality is well-known and mastered by legal practitioners and high civil servants. Urgency is another factor influencing such assessment, but rarely a cause of choosing coercion versus freedoms when the evidence are not strong enough or when the context do not justify such measure. Again, this assessment is pondered by the scope of your actions (local, national, regional, international).
On the contrary, what urgency and fear might let emerged in the prompt response of chosen coercion and/or limitations of fundamental rights, when not necessary.
Not necessary because the context do not justify such drastic measures, not limited in time, too vague, too large. The reasons are multiple. It is also the moment where our natural perceptions and instincts will interfere and interact: Freedom versus Coercion. Safety versus Security.
In certain occasions, it will also influence the evaluation of certain conditions that might trigger the application of restrictions to certain fundamental rights. When it is not evidence-based or when it is fear-led or politically-led, I believe it is where we need to be aware and choose what we want.
As Mr. Andrea RENDA also pointed out, this trade-offs was made when drafting European ethical rules for AI. Over the last 10 years, it was obvious that technology and AI are a mean to an end and not an end in itself. Within the United Nations system, the political and strategic choice made as early as 2009 was to issue “10 Innovation Principles” to have mandate-driven AI and frontier technologies applications and to have silver lining: the SDGs. This was a political choice.
To date, we have a similar choice to make. Do we really need a total breach of our data privacy or a large restriction of our movements?
Also, as engaged citizens, shouldn’t we do our best to best abide by collective requirements to avoid that isolated act justify the establishment of rules that should be very exceptionally used in a democracy not facing a military war.
I am an idealist, but I am well awake. I would rather abide by laws not to justify unnecessary restrictions and I would always raise my voice and stand up for a Society 5.0 in which technology, science and AI’s applications are not an excuse to justify restriction of freedoms. We can do both: leverage science while respecting our fundamental rights. If not, it should be under very exceptional circumstances.
Virginie MARTINS de NOBREGA
First published on March 23, 2020 here : https://www.linkedin.com/pulse/what-balance-do-we-want-choose-between-security-martins-de-nobrega/