Health passport: what surveillance to fear?

Deepl translation of this

Critics of the health pass unanimously denounce an “authoritarian danger”. Quite rightly, the CNIL [Commission nationale de l’informatique et des libertés] itself presents this danger as “the risk of habituation and banalisation of such privacy-invasive devices and of a shift, in the future, and potentially for other reasons, towards a society where such controls would become the norm and not the exception”. Let’s take a moment to detail this danger and answer the question: what kind of surveillance is the health pass?

There are already many “privacy-invasive devices” that we have been fighting against for years: phone tapping, data filing, cameras, drones, geolocation, spyware, etc. To understand and prevent the dangers posed by the security pass, we need to situate it precisely within this ecosystem. Some surveillance tools are more or less easy to deploy, on a larger or smaller scale, in a more or less visible way and with very variable consequences. By understanding the technological movement and the pre-existing tools the health pass has been built upon, we hope to fight more effectively against the banalisation of the type of surveillance it allows.

Controlling to exclude

To take a step back, let us describe in general terms the action that the health pass makes possible: to exclude from certain jobs, transport and places people whose situation differs from certain criteria set by the State.

Formulated in this way, there is nothing new about this method of regulation. This is how the French state treats foreigners: access to transport to the national territory, and then access to residence and employment on that territory, is only allowed if the situation of the foreigners complies with criteria set by the state (personal family and economic situation, country of origin, age, etc.). Compliance with the criteria is first checked beforehand and is then reflected in the issue of a document: visa, residence permit, etc. Then, the police only have to check the possession of these documents in order to control the situation of the persons, and then open or close the corresponding accesses. By threatening to exclude people who do not have the right document from the territory or from employment, the state deploys heavy repression – the consequences for those excluded are particularly dissuasive.

However, until recently, this type of repression had important practical limitations: documents could only be issued with a certain delay and at a certain cost, many police officers had to be deployed to check them, and some police officers even had to be specifically trained to check their authenticity. These limitations probably explain in part why this type of repression has so far been focused on specific cases (such as the control of foreigners) without being systematically deployed to deal with any situation that the State might wish to regulate.

The health pass is the translation of technical developments that could remove these old limitations and allow this form of repression to be applied to the whole population, for a very wide variety of places and activities.

Scaling up technology

Over the last decade, the majority of the French population (84% in 2020) has acquired a smartphone equipped with a camera and capable of reading 2D barcodes, such as QR codes. At the same time, the administration has largely adopted the tools of 2D barcodes and cryptography in order to secure the documents it issues: tax notices, electronic identity cards, etc. The 2D code makes the cost and speed of writing and reading information on a paper or digital medium almost zero, and cryptography makes it possible to ensure the integrity and authenticity of this information (guaranteeing that it has not been altered and that it has been produced by the authorised authority).

Although these developments are not particularly impressive in themselves, their concomitance makes things possible today that were unthinkable just a few years ago. In particular, it makes it possible to entrust tens of thousands of untrained and unpaid people from the state (but simply with a smartphone) with the mission of controlling the entire population at the entrance to countless public places, and this at an extremely low cost to the state since the bulk of the infrastructure (the phones) has already been privately financed by the people in charge of the control.

Now, suddenly, the state has the material means to regulate public space to almost total proportions.

One more brick in the Technopolice

The health crisis has certainly facilitated these developments, but its role should not be exaggerated. This dramatic increase in the powers of the state is part of an overall movement that has already been at work for several years, which did not wait for the coronavirus, and against which we are fighting under the name of ‘Technopolice’. It is the deployment of new technologies aimed at transforming cities into ‘safe cities’ capable of regulating the entire public space.

The Technopolice is the expression of technological developments which, as we have seen with the case of the health pass, have made it possible to make total forms of regulation which, until then, were more or less targeted. Let us take the emblematic case of cameras: until recently, the police were materially limited to a targeted video surveillance policy. They could only use the video recordings to analyse a few targeted situations, as they could not put an officer behind each camera 24 hours a day. Similarly, the identification of a person filmed required significant effort.

These limitations have since been overcome. Facial recognition makes it almost trivial to identify the people filmed (see our presentation). Automated image analysis makes it possible to continuously detect all events defined as “abnormal”: panhandling, being too static, running, forming a large group of people, drawing on a wall, etc. (see, for example, the projects imagined in Marseille or Valenciennes). It is no longer necessary to place an agent behind each camera to have a total vision. Whether it is the health pass or automated image analysis, in both cases technology has allowed targeted techniques to be transformed into tools for mass control of public space.

Permanent control of bodies

This parallel allows us to make an important clarification: whether it is the health pass or the automatic detection of ‘abnormal’ behaviour, these systems do not necessarily require an identity check. The imaging software that reports your “abnormal” behaviour doesn’t care what your name is. Similarly, in theory, the health pass could also work without your name – this is what the original crisis exit legislation envisaged or, more worryingly, what some companies are now proposing to do, based not on name but on face. In these situations, all the state cares about is directing our bodies in space in order to send to the margins those who – no matter what their names – do not conform to its demands.

This control of bodies is done continuously and at all levels. Firstly, to detect bodies deemed ‘abnormal’, whether by their behaviour, their appearance, their face, their vaccination status, their age… Secondly, to constrain bodies and exclude them from society, whether by the armed force of the police or by bans on entry. Finally, to inhabit bodies and minds by making us internalise the rules dictated by the state and by pushing people who do not submit to them into self-exclusion. All this on a population-wide scale.

Unjustified addiction

The mass adoption of the health pass would have the effect of accustoming the population to submit to this mass control, which is part of the broader cultural battle already initiated by the government, notably around cameras. This habituation would make it easier for the state to pursue its total conquest of public space, as it has already begun with the Technopolice.

Yet, paradoxically, in its current format, the health pass does not appear to be a very effective regulatory tool itself. It seems difficult to prevent doctors who wish to do so from providing passes to people who should not receive them. And, even if the passes are given to the “right people”, as it stands they can easily share them with the “wrong people”. Of course, the police intend to carry out identity checks to combat these exchanges, but if the effectiveness of the system ultimately relies on random police checks, there was no need to deploy mass surveillance mechanisms to go beyond what is already being done in this area, for example with handwritten prescriptions issued by doctors, which the police can check if they are suspicious. This would at least reduce the risk of addiction to a new system of mass surveillance.

Unfortunately, it seems more serious to envisage the opposite scenario: the ineffectiveness of the health pass could be used as a pretext to perfect it, in particular by allowing non-police controllers to detect pass exchanges. As seen above, some people are already proposing a new system displaying the face of the people being checked. Such a development would deliver the fully developed and effective version of the mass control system dreamed by Technopolice – and the police would hardly have to work at all to control passes.

Requirement to prove necessity

Even in its most sophisticated format, the health effectiveness of the pass would still need to be demonstrated – there are many uncertainties, whether about the value of the tests after 72 hours, the rate of transmission even after vaccination, the case of new variants, the effectiveness of coercion in getting people to vaccinate, or the length of time that the screening tests should be valid.

From a legal and political point of view, and as we recalled for StopCovid, the State is subject to a simple but fundamental rule: it has the obligation to prove that a measure causing risks to fundamental freedoms is absolutely necessary before deploying it. In our case, not only has the government not yet demonstrated the effectiveness of the health pass but, more seriously, it has refused to deploy or test the effectiveness of alternative measures that would not cause any risk to freedoms (such as benevolent, transparent and non-paternalistic communication campaigns to invite people to be vaccinated), or ambitious complementary measures (such as the release of funds to allow the doubling of classrooms and their ventilation, which the government has simply ruled out).

Conclusion

To summarise: the health pass illustrates technological developments that allow an old mode of repression (repression through exclusion, illustrated in particular by the control of foreigners) to move from a relatively restricted scale to an almost total scale, concerning the whole population and public space, in order to send back to its margins those who do not submit to the injunctions of the state.

If, today, these injunctions are only of a health nature, we must once again fear that this type of tool, once it has become commonplace, will be used to serve injunctions that go far beyond this framework. This fear is all the more serious because this process has already begun within the Technopolice, which is already sketching out a mode of social regulation based on the detection and exclusion of anyone considered deviant or ‘abnormal’ in the eyes of the state and the security companies, which together define the new norms of behaviour in society in an opaque manner.

A final strategic reminder: one of the reasons why the French government allows itself to impose such tools for the detection and exclusion of people it deems undesirable is that it can take up, and in turn revitalise, the obsessions that the far right has managed to trivialise in public debate in recent years in order to track down, control and exclude a certain section of the population. The fight against the authoritarian risks of the health pass would be futile if it were not accompanied by a fight against the extreme right-wing ideas that were its beginnings. The fight against the health pass must not be done with, but against the extreme right and its obsessions, whether they are in the street or in government.