The global health emergency due to the spread of the COVID-19 virus has led the governments of the most affected countries to adopt measures to slow down the advance of the virus. Restrictions on mobility, the closing of borders and the imposition of the telework modality are just some of the measures that have been adopted in different countries of the world. Ecuador is not the exception, as of the writing date of this entry there are 1382 confirmed cases and 34 deaths. For this reason, on March 16, 2020, President Lenín Moreno issued the Executive Decree No. 1017, declaring a state of emergency due to public calamity. 

It is undeniable that the precedents of other countries have shown that the isolation and reduction of contact between people is the most effective measure to stop the spread of the virus. Even so, the Executive Decree has a provision that must be observed with a critical eye. Pursuant to article 11 of said decree, “satellite and mobile telephone platforms may be used to monitor the location of people in a state of sanitary quarantine and / or mandatory isolation […]”. This means that those who are positive to the virus, are within an epidemiological fence, or have to comply with mandatory isolation for having entered the country from abroad, could be monitored by the Government. 

The Government Minister María Paula Romo, in a virtual press conference affirmed that the satellite tracking of people within the epidemiological fence is authorized by decree. According to Romo, the technology allows the government to know where a person is located by their cell phone number or the GPS on smartphones. The objective is to control that they comply with the isolation. 

People georeferencing can be said to be a useful tool to ensure that quarantined people remain at home and to identify people who may be infected, but at the same time gives access to sensitive information that puts the right to privacy at risk.

Measures of this type raise questions regarding the legality, necessity and proportionality of the same and the affectation to the fundamental rights of the people. The Constitutional Court of Ecuador issued a favorable opinion of constitutionality of the Executive Decree. Regarding article 11, it was clear in specifying that the use of these technologies should be limited only for the purposes of the state of emergency and in order to track the virus and isolate people with the potential to be contagion agents. Among the elements of concern of the Court are the right to privacy, non-discrimination and the protection of personal data. Above all, the Court limits the use of these technologies to those who are in voluntary isolation, who must be duly informed. 

In Ecuador, the use of satellite tracking or GPS of cell phones with the aim of georeferencing positive cases or epidemiological fence of COVID-19, must be subject to current constitutional regulations. Therefore, information regarding your health may not be used without authorization from the owner or his representatives, except for medical care (article 66, number 11). In addition, people have the right to the protection of personal data, unless their collection, filing and processing are authorized by the owner or mandate of the law (article 66 number 19); and, the right to personal and family privacy (article 66 number 20).

It should also be noted that the people who are subject to said measure must be duly informed, as indicated by the Constitutional Court itself. As of Sunday, March 15, the form delivered by immigration agents at airports did not include any reference to the possibility of being tracked using the cell numbers provided in the document. In this way, the existence of the consent, or at least information, of the data holders is brought up for discussion so that they are aware of the satellite tracking of their cell phones. 

On March 25 President Moreno has announced also the development of an application that stores the name, year of birth, ID number, geolocated address of its users. Through this application, users can report their symptoms related to COVID-19, and the application will contact the patient with the platforms created by the Government for the health emergency. The authorities affirm that the use of telemedicine will identify possible infected persons and that they will keep the information confidential, although the terms and conditions say that it is accepted to deliver all the information to the Government and its ministries.

The points of greatest concern are the following: 

 

Right to privacy

Satellite tracking and the telemedicine application put information such as names, phone numbers, addresses and movement details into the hands of the State. This data is part of the private sphere of the interested party and is sensitive information that can be misused by those who have access to it, either legitimately or illegitimately.

The Human Rights Committee has indicated that measures must be taken so that information related to people's private life does not fall into the hands of unauthorized persons and that it is not used for purposes that are incompatible with the International Covenant on Civil and Political Rights. (one). Likewise, the Inter-American Court of Human Rights has indicated that the States “[…] must assume an even greater commitment, in order to adapt to the current times the traditional formulas of protection of the right to privacy.” (two)

It should be remembered that measures that employ surveillance technologies are usually covered in criminal or investigative proceedings. (3) Although the current circumstances require extraordinary measures, the right to privacy of citizens cannot be jeopardized. Therefore, satellite tracking must be an exceptional measure that does not extend over time and that does not compromise people's private information. 

 

Processing of personal data

The use of tracking technologies or applications to identify symptoms allows access to various personal data. The Inter-American Commission on Human Rights It has indicated that the States must prohibit the treatment, analysis or disclosure of this data except when they are entitled to do so or with the consent of the person affected. In the present case, the executive decree authorizes the carrying out of satellite tracking, a measure classified as constitutional by the Constitutional Court of Ecuador. Even so, this measure must be subject to the recommendations of said body and be clearly informed to interested citizens. 

In recent days it has leaked insights relative to the sectors with the most contagion in the Metropolitan Municipality of Quito, published the nationality of the infected patients and they have spread photos of deceased by coronavirus in Guayaquil, what guarantees that the data obtained by georeferencing will be protected? 

In the present situation, and taking into account that it is the State that carries out the data storage both for satellite tracking and for COVID-19 cases, mechanisms should be established to ensure that: 1) the data is not used for others ends or leaked to unauthorized persons, 2) is carried out only within a limited time. Especially if we take into account that Ecuador does not yet have a specific law regarding the treatment, storage, analysis and protection of personal data.

 

Nondiscrimination

From the first public cases of COVID-19 contagion, xenophobic behaviors began to take place against the Asian population. Now that the virus has spread all over the world, it is correct to assume that all these xenophobic expressions against people of Asian origin will be able to spread to all who test positive for the virus. Georeferencing endangers the data of people who are a potential risk of contagion and, therefore, their security. 

Reciente en un Press release, the Special Rapporteurs for Freedom of Expression of the Organization of American States, the United Nations and the Organization for Society and Cooperation in Europe have indicated that, aware of the use of these surveillance tools, States must protect the personal information of the patients. All use of these technologies must comply with the strictest protections and in accordance with international human rights standards.

The mishandling of sensitive data related to a person's health, especially in a context like the current one, generates an exposure of the affected patient. This could generate comments and discriminatory behaviors against them, especially in the most vulnerable members of the population. 

 

1. Human Rights Committee. General Comment No. 16. Article 17 - Right to privacy, 32nd period of sessions, UN Doc. HRI / GEN / 1 / Rev.7 at 162 (1988). Para. 10.

2. I / A Court H.R. Escher vs. Brazil. Judgment of July 6, 2009. Merits, Reparations and Costs. Series C No. 200, par. 115.

3. IACHR. Standards for a Free, Open and Inclusive Internet. OEA / Ser.L / V / II IACHR / RELE / INF.17 / 17 March 15, 2017. Para. 210

 

Martina Rapido Ragozzino

Twitter @MartinaRapidoR