Analysis of Covid Apps in the European Union: between exceptionality and protection of fundamental rights

Abstract

The challenges facing the European Union (EU) can sometimes create tensions, in which the organization must answer both to the protection and guarantee of the fundamental rights of its citizens, and to global needs that exceptionally require the suspension of those same rights for the greater good. In its liberal political tradition that believes in the existence of a public and a private sphere, it has established systems of checks and balances, rule of law and stable institutions to protect the rights and freedoms of its citizens. Yet sometimes these must be suspended in cases of exceptionality for their own preservation.

This was the case during the 2020 pandemic, when the European Union and its member States decreed quarantines against the consolidated and fundamental freedom of movement of persons, to restrict contacts and try to contain contagions. In this context, digital policies were also implemented to deal with crisis management, like Covid applications for tracing and monitoring contacts between individuals. This invasion of the private sphere of citizens had to be accompanied by a set of limitations and guarantees, to protect this inherent and private individual’s right.

These applications were subject to the requirements of the European legislative framework (the commonly known acquis communautaire), which included several legal instruments laid out by the EU to create a framework to guide the performance of its member-state Governments on this matter. Apart from the GDPR and the ePrivacy Directive, we underline the importance of Recommendation (EU) 2020/518 that connects health rights, health management and data protection; and also, the importance of Communication 2020/C 124 I/01 that set a series of ideal elements to guide apps functions, and established the importance that it is Government agencies that manage digital apps, so there is a guarantee of the protection of citizens’ rights.

Through the comparative study of how apps were managed when they first appeared in 2020 throughout most of 2021, and how apps evolved (both in management and use) in 2021 and throughout 2022, we can address the evolution of EU policy on digital matters, which have meant to create new frameworks for internet navigation. At first, there were 24 different apps for the 24 out of 27 Member States who decided to create and promote the use of these instruments among their citizens. Most of them were managed by national authorities (except for Austria and Romania who were managed by Red Cross and a local NGO respectively), and were developed by a public-private collaboration, or only public agencies. At the end of the crisis, at least politically since societal weariness and the economic crisis rendered it difficult to keep up the restrictions introduced in the spring of 2020, in June 2021 the EU created its GreenPass or vaccination passport. This policy was implemented in most countries and even though 24 different national health services were still in place, they all used the EU passport, available to citizens via their national health websites or apps.

Even though the exceptionality of the pandemic has ended, one of the outcomes has been the establishment of a system of data gathering, storage and management for public means, managed by National Authorities, which has technically created a digital contract where the State guarantees citizens’ digital rights. This is even more important as we attend to an increase in the digitalization of public services, especially since 2020. The changes were thus promoted in a state of exception during the crisis to regulate Government interference in the citizen’s private sphere but have laid a roadmap for the development of the digital framework, which may lead to the conclusion of a digital social contract.

The social contract appears in the EU’s liberal tradition as a metaphor of the relation between the State and the individual, it defines the notion of sovereignty as the set of rights possessed by the citizen that may be subject to special protection. Hence, the social contract serves as the basis for creating modern societies, yet it is not permanent and can (and will) change when societies change accordingly. Several critiques have been made to the original social contract, creating new and developed contracts, including the class critique (from worker’s movements and Marxism during the 19th Century to Piketty’s present denouncing of social inequalities), the gender critique (as Carole Pateman’s Sexual Contract puts it, the social contract institutionalized patriarchy), the racial critique (where Charles W. Mills develops the gender critique from a racial point of view where the social contract created a system of domination by the Western world) and finally the environmental critique (where its advocates claim for an eco-social contract or a nature social contract that shifts the approach to a bio-centric system).

Therefore, the contract serves as a theoretical framework that can be changed, and in this case, it challenges the evolution towards a digital social contract. The evolution of internet and tech structures that support the web and its processes has been marked by three stages: its birth in the 80s by the hand of the State and linked to military research; its deregulation during the 90s and the privatization of the main telecommunications enterprises (in the case of the EU, the digital policy followed this trend); and the consolidation of a digital sphere in the 21^st century, where the EU has taken a step back and created a set of instruments to guarantee the protection and freedom of its citizens when they navigate the internet.

We can see how the EU has responded to global dynamics at the level of digital regulation, prioritizing today a multi-stakeholder system with several actors, and counterweights and limits for both companies and public administrations in their exchange with users on the internet. With the emergence of new spaces for social relations such as in the digital sphere, new types of sovereignty must be considered in order to guarantee the rights and privacy of users (we must not forget the importance of the separation between spheres, as fear liberalism reminds us, and of limiting exceptionality to those circumstances that really appear as such).

Once the foundations on which the model of digital guarantees can be developed have been laid, the next step can be the creation of a real digital contract between users and the state on the internet. However, the contract is but an idea of reason for understanding politics and institutions, which begs the question of what digital politics we aspire to as societies.