Faustian bargain: privacy in time of pandemic in Lithuania

The Covid-19 pandemic is challenging public health, economic and social life across Europe. Yet aspiring authoritarians are living a dream. Pandemic is a perfect excuse to interpret basic rights at will.

This is the setup for the strong handed government of Lithuania, led by a former national police commissioner, Prime Minister Saulius Skvernelis. With the ruling coalition trailing the polls at the beginning of the year and the national election scheduled later this year, the Covid-19 crisis is proving an opportunity to play into the darkest fears and embrace war powers with wide open arms. Notably with little or no resistance from the stunted political opposition. Personal privacy, which is hard to appreciate and quantify even in peaceful times, is the first on the chopping block.

Already before the pandemic struck, Lithuania proved privacy was not the priority. Since 2018 Lithuanian national policies and laws gravitated towards weakening privacy for managing geopolitical risks, while the data protection supervisory body was nudged to the sidelines by depriving it of expertise and budgetary means. The governmental abuses of privacy were shielded from investigation and publicity, even in case of blatant privacy violations. Just one recent example: in January 2020 the leaking of very private investigation videos (sexual content) of minor crime suspects by the Lithuanian police was downplayed and the investigation was shut down in advance, while the data protection supervisor went silent for the whole month of February 2020 and pretended as if nothing had happened.

Privacy was not a concern for the government in the context of the Covid-19 pandemic in Lithuania. In response to the protest of legal scholars only (no politicians), the executive branch basically sidelined the legislature in proclaiming national emergency by governmental resolution, and allowed the members of the government to publicise private information (geolocation and routes) on the first Covid-19 cases, without any legal basis (official regulation). Mass media capitalised on this info and produced public visualisations of the Covid-19 routes in Lithuania from which identities of the infected are easy to extrapolate. International media picked up the story from there. A reaction of the Lithuanian data protection supervisor? Nowhere to be heard.

It is not clear whether the executive branch already took steps to electronically survey in real time the Covid-19 cases or suspected carriers in Lithuania, but based on examples elsewhere it can be reasonably assumed. First thing after reconvening the legislature on 30 March, the Lithuanian government tabled a legislation (amendments to the Law on Electronic Communications) allowing instant electronic surveillance (location and communication stream data) of private persons on vague grounds of ‘extraordinary situations’ or ‘quarantine’ or even ‘a person’s entrance into “unsafe territory”’ - whatever that means. The legislation obliges the communications service providers to turn such data over to authorities free of charge upon first request. Judicial authorisation is not necessary. That would  be a waste of time in war – according to the government. Closely following up is another legislation imposing grave sanctions (fines up to 6000 Euro and prison time) and empowering the law enforcement to police it. That includes forced entry into dwellings and extrajudicial detention of surveilled persons. So far only a few MPs have voiced concerns and the government quickly conceded that communication stream data may be excessive, yet vague grounds for surveillance remain and all this legislation is expected to be adopted over the next few days.

The history of the XXth century teaches us what came next, after basic rights were sidelined. While extremely serious and unprecedented, a pandemic is not war. Compromises on privacy are needed, but they cannot be arbitrary nor generalised. Limitations shall be individual, limited to public health enforcement, and each case shall be reviewed and monitored by proactive independent supervisors. War rhetoric and sweeping unsupervised war powers are not the way.