Covid19 / Why Fundamental Freedoms Can Be Restricted
OPINION |

Covid19 / Why Fundamental Freedoms Can Be Restricted

ORESTE POLLICINO, A CONSTITUTIONALIST AT BOCCONI, EXPLAINS THE LEGAL CONDITIONS UNDERLYING THE EMERGENCY RESTRICTIONS AND TRACING OF THE INFECTED. AND IT WARNS ABOUT THE DANGERS TO AVOID IN ORDER NOT TO HOLLOW OUT THE DNA OF OUR EUROPEAN SYSTEM

by Oreste Pollicino, Bocconi School of Law
Translated by Richard Greenslade


The fundamental mission of constitutionalism is to react to abuses of power. Our Constitution of 1948, like the German one a year younger, are in fact designed to react to macroscopic violations of fundamental rights by Nazi-fascism. It also lays solid foundations on which fundamental rights can, in the future, be protected and guaranteed both in he terms of the system’s physiology and of its pathology. And it is difficult in our republican history to think of something, in every sense, more pathological than the pandemic in progress.

This is an emergency that allows, and indeed imposes, very invasive limitations on fundamental freedoms without however annulling their essential content, their nucleus. Think of the issue related to the significant limitations to privacy determined by the possible (and currently enacted in Lombardy) tracking of our movements. Limitations that could be very useful for re-establishing the epidemiological chain of the virus and therefore enabling us to prepare a more effective and targeted reaction to it.

The question everyone is asking right now is: how far can such tracing go so as not to conflict with the regulatory framework of reference? And the relevant regulatory framework, even before the national constitutional one, is the European one.

In this broader scenario, there is no need, as many have done, to immediately bring up the General Data Protection Regulation (GDPR). It is in fact sufficient to start focusing on fundamental rights: let us consider the Bill of Rights of the Union. On the one hand, in fact, art. 8 of the Nice Charter constitutionalizes the right to protection of personal data as one of the fundamental rights of the European Union. On the other hand,  art. 52 of the same Charter tells us that these rights, including of course privacy, are not absolute, but can be limited to achieve purposes of general interest (none is moreso than the one under discussion) provided that measures taken are proportionate and the essential content of these rights is not affected.

With this in mind, in order to answer the question asked previously, two conceptual paths must be distinguished.
In the first place: what is technologically feasible in order to create this much-discussed map of the infection in the most surgical way possible?
Secondly: what is legally allowed under our system which, unlike China, Singapore and even democratic South Korea, must move within the context of European constitutionalism?

As for the first question, the technology in question can allow us to monitor information related to the daily and personal life of users and to elaborate it using Big Data analytics systems with the support of operators such as telcos or financial institutions. The result is an almost surgical map of the virus and its vectors on the territory that prescinds from the number of infected in a given municipality or other non-capillary data.

Concerning the second question: would this result, assuming it is actually effective (given the current lack of diagnostic and curative tools, starting with swabs and intensive care facilities), be compatible with the European reference framework?

The answer can only be positive, provided that certain conditions are respected. And they have not been respected in places where privacy is not, as in Europe, a fundamental right.
The data must be anonymized, and there must be no way to discover the identities of the traced subjects.The data thus collected must be kept only for the time strictly necessary for carrying out anonymized tracking operations, and its use in any way for other purposes must be absolutely prohibited.

Is consent required? No because in this case the GDPR provides that, even in cases like these, in which the data are very sensitive, consent itself is not necessary if the "data handling is necessary for the protection of the vital interests of the interested party or another physical person". And I would say that this falls into that category.

However, that is not enough. A specific legal basis is needed which provides for all the necessary guarantees, starting with the proportionality, adequacy, and temporary nature of the measures in question. The norm that is often invoked, contained in law decree n. 14 of 2020, which provides for the possibility of data communications to subjects other than those identified by the GDPR precisely in case of health emergency, is absolutely not sufficient. It absolutely does not allow unlimited authorization for tracing previously assumed in the absence of a specific legal basis, currently missing.

In other words, we can certainly restrict, as we are all experiencing, some fundamental freedoms in an emergency period. But such restrictions, especially for those rights that, like privacy, have their roots in the humus of European constitutionalism, cannot lead to an emptying of the essential core of the right at stake. Because if they did, it they would trample not only that right, but also the DNA of our European system.

Constitutions and charters of fundamental rights are written, as was said above, as a reaction to past abuses of power. True, but they are written also so that the "rediscovered" rights may never again be radically damaged in the future, in the darkest moments.

And this is an extremely dark moment, during which attention to avoiding irreversible injuries to our rights must be maximum.

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