Lawyer warns against emergency cell phone tracking measures during coronavirus outbreak

Toronto criminal defence lawyer and legal expert Joseph Neuberger says granting the government access to cell phone location tracking and private information on citizens is wrong.

Diana Davison Montreal QC

Toronto criminal defence lawyer and legal expert Joseph Neuberger says granting the government access to cell phone location tracking and private information on citizens is the wrong way to deal with concerns over the spread of COVID-19.

In an interview with The Post Millennial, Neuberger warned that, in the past, even with concerns over terrorism, “we were careful to try and be measured and balanced with respect to the invasion of privacy and civil liberties.” According to Neuberger, the emergency measures being proposed to respond to COVID-19 would violate our privacy rights in a way that is unacceptable.

Neuberger warns that “it seems now that we are going to an extreme, with the suggestion that any level of government can monitor our cell phone activities to determine where people are. And that type of an invasion is, to me, well beyond the danger that we face.”

Neuberger further advised that “having unfettered discretion for the government to be able to access this data and track us is unprecedented and, I think, an incredible invasion of our Charter rights and our right to privacy.”

The consequences of allowing the government to enact emergency measures that infringe upon privacy rights are much larger and more dangerous than the immediate concerns being used to gain support for bypassing civil rights. Once civil rights are breached it can take a long time to restore them and there is no guarantee that the information obtained will be used only for the purpose it was intended.

Asked about the long term consequences, Joseph Neuberger expressed concern that “once this power is given up to the government, it will be unfettered. I mean, they’re going to track it for what, three weeks? And then once that information is given to the government, what’s to say that they’re not going to continue to track it?”

Without proper constraints Neuberger said we could now be “looking at a restriction of liberty beyond reproach, in my opinion. Again, why should they know what we do with our lives? If they want to enforce a lockdown, put authorities on the streets to do that. But do not track our private information.”

The government could try to assuage public concern by claiming that limitations are being put in place regarding how information they receive can be used, but there are no checks and balances in place to ensure the use of that information is constrained. The public would be asked to simply trust the government that none of the private data was misused for other purposes.

There are indications that the government reacted too slowly to warnings about the seriousness of the novel coronavirus and Joseph Neuberger warns that “now the result is they need to put drastic measures in place, but they want to invade our privacy in order to do that. And that’s not acceptable."

It is possible that cell phone providers may, legally, have to give their clients an option to change their privacy settings in advance or give them time to switch to a different provider but it’s difficult to imagine which providers would stand up to a government order directing them to provide information about their clients without advance consent.

If data is turned over to the government under “emergency measures” a constitutional challenge would be difficult given the current situation with the courts also being mostly shut down during the crisis.

It’s the perfect storm.

One thing we can keep in mind is that many “emergency measures” end up never being rescinded, like income tax. While, in desperate times, the government may seem to be acting in the best interests of the people there is little history to support the idea that infringements on civil liberties will be restored once the crisis has passed.

If our government uses a crisis, like the current pandemic, to infringe upon the constitutional rights and liberty of their citizens, we will have no quick remedy to regain that which we have lost.

For those who think that it’s acceptable to only target people diagnosed with COVID-19, Neuberger offered the following words: “Well, that unfairly discriminates against them. I mean it’s not their fault they got the virus. Why are their privacy rights less or more important and not mine?”

While people are in a state of fear it’s easy to forget that the rights of all are at stake when we sacrifice the rights of a few. There is no “greater good” than the fight to maintain civil liberties in a time of crisis.


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