The Risk to Data Protection in the Developing World During the Pandemic

tional amendments were able to deliver on their stated aims. We were thrilled to be joined by a range of speakers from academics to activists from diverse backgrounds, to explore issues arising from the referenda on Marriage Equality, Citizenship and the Eighth Amendment, as well as the future considerations of constitutional change in Ireland such as the Right to Housing and extending voting rights to Irish citizens living abroad.

One of the best aspects of running our first mini-series was how it facilitated us in examining a broad topic from a range of angles which we have not had the ability to do previously, as generally our weekly speaker events are focused on distinct topics often related to the themed college weeks. The series allowed us to reflect on some of the defining constitutional changes in recent years as well as contemplate significant issues which may be on a ballot in the near future. The series truly was a passion project of the whole committee, with more than half of us being involved in its running. At Trinity FLAC, we’d like to thank our dedicated committee and all of our members for making the semester an unforgettable one to say the least!

By Julia Best, JS Law

The debate on data protection in the western world during the pandemic

In the wake of the global pandemic and rapid increase of Covid-19 cases, technology became more vital than ever. As people were separated from their loved ones for extended periods, technology became a comforting ally to ensure that people could stay connected. However, simultaneously to this, technology was being developed to keep people apart and prevent the further spread of the virus. Many governments across the world began to initiate plans of mass surveillance to ensure that those residing in their state were complying with lockdown and quarantine regulations.

In Ireland, the Track and Trace app was launched on July 6th. Northern Ireland followed closely behind, releasing the app in late July. Prior to this, location data had already been implemented to track the spread of the virus in European countries such as Italy, Spain and Belgium. The Director of the UN Global Pulse and Co-

Page 41 Society

Chair of the UN Privacy Policy Group, Robert Kirkpatrick, stated that during the pandemic the “UN reinforces its commitment to using data and new technologies in ways that respect the right to privacy and other human rights and promote sustainable economic and social development.” Despite such promises being made, there began heated debates on the potential infringement to the right to privacy and data protection that digital tracking and tracing could pose. Some experts expressed the view that there was and remains little evidence to support the rapid implementation of such technology.

In the western world, there have been continuous protests regarding the infringement of privacy rights. In August protests were organised in London, Liverpool, Bristol, Manchester and Newcastle as the private company Serco, were negotiating to renew their contract to continue involvement in the Test, Track and Trace programme. Some raised the view that private contact details are not best left in the hands of private corporations due to data protection concerns. These concerns were confirmed when Serco accidentally shared 296 tracer’s contact details, breaching data protection regulations. It became evident that there was a real fear that the need to fight the virus through technological advances could unintentionally result in the demise of the data protections already established in our legal systems in the western world. However, the potential consequences for those countries in the developing world without already established legislation and regulation on data protection could be far greater.

A risk to developing countries

Regrettably, less than half of low-income countries have data protection and privacy legislation. Without legislation or regulation already in place, there is a legitimate risk that the governments of certain developing countries could use the emergency powers granted by the pandemic to implement technological advancements without proper consideration of social concerns and data protection for the individual. Developing countries are already at a higher risk of the health, social and economic impact arising from the pandemic. The United Nations Development Programme estimates that developing countries are expected to be hit with income losses in excess of $220 billion. Moreover, they estimate that around 75 per cent of individuals living in the least developed countries lack adequate access to soap and water, exacerbating the spread of the virus. In addition to these health and economic concerns, there is also a threat to data protection. The lack of legislation regulating data protection in these countries could lead to governments using the pandemic as a justification for implementing intrusive digital and technological measures putting those who are already left in a vulnerable position due to the pandemic at additional risk.

A “shocking excess of state powers”

Even at the early stages of the pandemic, countries such as India, Jamaica and Ghana were implementing invasive digital tracking measures to monitor those residing in their states.

According to a report by the Economist Times in March, Indian state governments and large municipalities had already begun to implement strict surveillance mechanisms to ensure people stayed at home during their time quarantining. The Indian state of Karnataka launched and has continued to use a smartphone app to monitor those who are quarantining. The app not only monitors the users’ movements through the Global Positioning System (GPS), it also requires users to take an hourly selfie to ensure they do not leave their home. The selfie is geotagged to check it is taken in real-time. A Karnataka health department official stated that if the user does not take the selfie, ‘“we will send someone to go and click a picture”. The Indian state of Telangana is also using a similar mechanism to ensure that individuals are completing their quarantine. The Executive Director of the Internet Freedom Foundation, Apar Gupta, highlighted the looming threat to data protection these apps pose, stating that the coercive action of having to take and send a selfie without a proper legal framework protecting data is a “shocking excess of state powers”.

Society Page 42 Jamaica is also attempting to implement highly controversial technological measures to prevent the spread of the virus. According to a report by the Jamaican Information Service, the government has used the global pandemic as justification to fast track the implementation of its National Identification System. The system aims to provide aid and social benefits to those in need due to the effects of the pandemic and to ensure curfew rules are obeyed. The Jamaican Prime Minister, Andrew Holness, has assured that the identification system is being implemented as quickly as possible whilst remaining within the boundaries of the law and the Constitution. However, it is difficult to reason how the government could implement such measures within the confines of the law when a national identification system was already held to be in violation of the Constitution by a unanimous decision of the Supreme Court in April 2019. The Court held that the entirety of the National Identification and Registration Act (NIRA) was void and that the mandatory requirement of biometric identification infringed the right to privacy. Although it could be argued that a national identification system could now be justified due to public health concerns during a pandemic, it is paramount that these measures are still subject to the rule of law.

A location tracking app has also been launched by the government in Ghana. The app informs the immigration service of individuals who have recently visited countries with a high number of Covid-19 cases to determine whether the individual should quarantine or not. Furthermore, the Taiwanese government is using SIM cards and mobile networks to geotag individual’s locations.

Beyond the pandemic

Achim Steiner, the Administrator of the United Nations Development Programme (UNDP) stated that the pandemic is “not just a health crisis. For vast swathes of the globe, the pandemic will leave deep, deep scars.” The impact of invasive surveillance measures implemented during the pandemic in developing countries could have long-lasting effects that stretch beyond the era of Covid-19. There is a legitimate concern that some governments will not withdraw these intrusive technological measures when the need to fight the virus diminishes. In the absence of institutional checks and balances in such countries’ legislative schemes, it is possible that the use of intrusive digital tracking and collection of data could be expanded and extended for purposes outside of health concerns in the future.

There is also the risk that the private sector could inadvertently benefit from the dangerous combination of intrusive surveillance measures and lack of data protection legislation. Already large corporations have been entrusted with a significant role in the digital contact tracing and fight against Covid-19. Thus far, their assistance in devising innovative digital solutions to track and prevent the spread of the virus has been vital. Despite this, there is a risk that without clear data protection legislation governments will be unable to, at a later stage, retract or reduce powers already passed to large companies. The data being collected by smartphone apps is extremely valuable to detect and prevent the spread of the virus, but it must be remembered that this same data could be subject to commercial exploitation at a later stage. In the absence of regulation on how the data should be collected, what data should be collected and how long data should be kept for, the data could likely be exploited for alternate purposes after the pandemic; for example, the data could be shared with health insurance companies. At present, many developing countries implementing these intrusive technological measures have provided no guarantee that the data being collected for purposes of fighting the virus will not be used for an undesirable future purpose.

The pandemic has resulted in large technology companies becoming only more successful and influential as the use of technology increases. Although it could reasonably be argued that these companies have the knowledge and skill to develop the innovative technological solutions needed to prevent the further spread of the virus, it remains of the utmost importance that these companies are properly regulated in all countries to ensure that health data is used for the right reasons. The director of UN Global Pulse and Co-Chair of the UN Privacy Policy Group, Robert Kirkpatrick notes that “we can only defeat Covid-19 with trust, science and solidarity”. However,

Page 43 Society the law must also not be forgotten in the fight against the virus.

A catalyst for reform

Although there is a risk that the pandemic could be exploited to justify intrusive surveillance measures without adequate regulation, this could also be an opportunity for developing countries to establish proper legislative schemes to protect the collection and storing of data. Thus far, some countries have used the pandemic to address other legislative gaps that lawmakers have long overlooked. In South Africa, the Independent Communications Authority released an additional broadband spectrum to address the spike in broadband services during the pandemic. The hope is that the new licenses will stimulate economic recovery and provide support for virtual teaching, paving the way for a shift to remote or online education. Furthermore, the National Bank of Ethiopia announced the Central Bank Directive in April, which aims to encourage the use of non-cash payments as it allows non-financial institutions to offer mobile money services. These are just some examples of how developing countries have used the pandemic as a chance to develop the regulation on technology.

The Covid-19 pandemic truly has the potential to act as a catalyst for reform in the area of data protection as it has exposed existing gaps in the legislative schemes of developing countries. The pandemic has provided governments in the developing world with a golden opportunity to develop data protection regulation that will remain in place after the era of Covid-19. Undoubtedly, the governments of these countries are facing extreme pressure to address the important issues facing health and the economy; however, there is no better time than now to act to safeguard data protection of the individual.

By Ciara McLoughlin, SS Law

Feinman and Gabel argue in Contract Law as Ideology that equality of bargaining power is a myth in modern contract law. Fish contends in There’s no Such Thing as Free Speech... and It’s a Good Thing, Too, that the right to free speech is artificial and misconstrued. In An Essay on Rights, Tushnet also maintains that rights are not static, nor do they pre-exist mankind, but rather they are contingent on contemporary society. A common thread weaving through the works of these scholars is that the courts are perpetuating legal falsehoods. In assuming that the core theses of their articles are true, we should challenge ourselves to understand that there may, upon closer examination, be some merit to accepting the law’s false propositions.

This should not perpetuate legal falsehoods, nor does it comment on whether the courts are consciously furthering their existence. The modest task here, is to show that legal falsehoods can a) serve to uphold faith in the justice system and b) simplify the law in certain instances.

Faith in the Legal System We are all familiar with the image of Lady Justice wearing a blindfold, which symbolises the impartiality of the law. Most legal systems have traditionally claimed to be indifferent towards the wealth, status, or personal attributes of its subjects. This purported indifference is vital because without it, faith in the legal system would be eroded. For example, if a judge could take a litigant’s financial circumstances into account, they may decide a case in favour of a poorer applicant out of sympathy, despite the fact that the wealthier defendant may have ad-

Law Page 44 hered to the law. Such bias on the part of the supposedly-impartial judge is clearly undesirable as it compromises the objectivity of the legal system. An enthralling strength of legal untruths is that they can be used to present the law as having equal application (even when this is simply not the case), as acknowledging the inherent inequality of the application of the law would undermine the law’s central mission of neutrality.

Feinman and Gabel’s work highlights that the notion that parties of a contract possess equal bargaining strength is a legal falsehood. It is true that there is a power imbalance in most contractual agreements. Consider the relationship of a landlord and a tenant. The landlord has much to gain and little to lose as there are plenty of other tenants in the market – a primarily economic motivation. On the other hand, the tenant has a lot to lose as the contract will impact his livelihood (i.e. by loss of home) which serves to weaken his bargaining power. Arguably, the law, in feigning an equality of bargaining power, solidifies the idea that the legal system treats all those who come before it as equal. I am not suggesting that this is the reason that the courts have not dispensed with this outdated notion of contract law. However, I am positing that the benefit of upholding faith in the justice system occurs when keeping this legal untruth in place. If a judge was tasked with providing an assessment of the power dynamic in every contract between commercial and non-commercial actors, they would need to consider concepts such as the parties’ wealth and status, to which the law is supposedly blind. The law of contract would therefore be perceived as having unequal application which would significantly undermine confidence in the legal system.

In the interests of a complete and comprehensive argument, it should be pointed out that a separate issue is whether the legal falsehood of equality of bargaining power in fact perpetuates injustice. My argument focuses on procedural justice and purely addresses the second limb of the borrowed aphorism, “justice must not only be done, it must also be seen to be done”. Even if the equality of bargaining power façade furthered substantive injustice, the point would still stand that the rhetoric of equality has the benefit of keeping faith in the justice system alive as the law appears to be fair.

According to Tushnet, the courts voice the idea that rights are static legal concepts. He contends, however, that rights are not fixed to a point in time and law. For example, the right to marry has evolved to include samesex marriage. It also incorporates the corollary right to divorce. In essence, rights embody the values of communities and are therefore subject to change. If the courts presented rights as context-dependent, then perhaps they would appear to endorse the differential treatment of litigants, once again stripping Lady Justice of her blindfold. By stating that rights are contingent, the courts would be telling the public that they are making a value judgement based on what they perceive to be the pervading attitudes or morals of society. As Fish reasons in The Law Wishes to Have a Formal Existence, the law’s perceived formality is a rhetorical achievement which is a value in and of itself. If this is true, then to admit the unequal application of law would gravely endanger this value thereby threatening faith in the institution.

That is not to say that individuals are better off being lied to by the courts. Static rights rhetoric can lead to the subversion of rights, for example, where the right to freedom of expression is used to protect hate speech. However, the point must be made that the legal falsehood of static rights can be beneficial to the concept of law as it reinforces the idea that the law is impartial, thereby ensuring that it continues to enjoy the trust and faith of the general public.

Simplification To the layman, the law is thought of in definitive terms: black or white, right or wrong, yes or no. This is grounded in Lon Fuller’s theory of The Morality of Law that if the law is clear it will be easy for citizens to understand and follow. For this reason, clarity is a central tenet of the rule of law. Of course, it is trite to point out that in reality the law is all shades of grey. The benefit of legal falsehoods, however, is that they can simplify a body of

law that is highly complex and at times even ambiguous. Therefore making the law easier for citizens to comply with in certain instances, which aligns with Raz’s assertion in The Authority of Law that rules must be sufficiently clear in order to be capable of guiding individual conduct.

The legal myth Fish debunks is the right to free speech. He asserts that the normative position is one of constraint, rather than liberty. Arguably, by accepting the partly false premise of a right to free speech, the law maintains superficial clarity which brings about an overall net benefit of certainty to citizens’ lives. Free speech appears as a hard and fast rule which is easy for citizens to follow. In the Irish context, Article 40.6.2 of the Constitution adds the caveat that the right to freedom of expression can be restricted in the interests of public order or morality. Therefore, the right to free speech encourages a de facto position that human beings are allowed to speak in most instances. Misrepresenting the normative position has the advantage of creating concise law which is easy for citizens to understand. The same cannot be said for restraint. If human beings understood the normative position as one of curtailment there would be great uncertainty in the law - and in the minds of citizens - regarding what speech is permissible. This is problematic as people would constantly have to consider whether it is appropriate for them to speak, which could plausibly result in a mass inhibition of social interaction. In addition, citizens would not have a clear understanding of what speech is appropriate. Realistically, it is impossible for the government to legislate for every instance in which free speech is permissible. Citizens will be able to follow the law with greater ease where the default position is understood as liberty rather than constraint. Essentially, judicial adherence to a legal falsehood allows a right and its subsequent limitation to co-exist in a manner which does not compromise our ability to understand their practical application.

Final Remarks In a courtroom, the law seeks truth. It attempts to decipher whether a plaintiff was truly wronged, and if so, whether the defendant is truly to blame. However, the law is not the moral boy-scout it pretends to be. It lies to the consumer when it assures him that he has equal bargaining power in a contract with a multinational corporation. It lies to the journalist when it tells him that he has the right to print whatever he likes in his newspaper. In spite of this, these lies or legal falsehoods have merit. Real-life examples and concise reasoning demonstrate that lies within the law are not are not wholly unpalatable or undesirable, and we can argue that they can benefit the legal system by upholding public faith in it as an institution, as well as adding certainty to citizens’ lives through the perceived simplification of law. Therefore, it can be concluded that the law always tells the truth - even when it lies.

By Eoin Jackson (Legality), JS Law and Samantha Tancredi (Moral and Ethic Entanglements), JS Law and Political Science

Innocent until proven guilty - these are words that echo through court chambers and reside in many guiding legal documents, which provide an interesting context in exploring the representation of guilty clients. There is more to this legal maxim than is met at face value, including the difficulties a lawyer faces when representing a client who enjoys the presumption of innocence, but whom the given attorney knows to be guilty. In unpacking this principle, ethical, moral and legal arguments emerge and provide room for discussion.

Moral and Ethical Entanglements

Ethics Lawyers have a presumed ethical duty to act in the expressed interests of their clients in all circumstances. Many view the role of a lawyer to be an integral actor in the administration of justice, and justice does not cherry-pick its customers. This very principle is reflected in the ethical legal codes which stipulate that lawyers not dismiss a client based on race, sex, sexual orientation, language, politics, religion, or nationality. While legality is discussed below, it would be remiss not to mention the intrinsic link between legality and legal ethics, the latter having a great impact on a lawyers’ choice in client representation. Lawyers play an important role in society. This is seen not only through the directly relevant humanitarian fields of law one may enter such as human rights law or environmental law, but also through the acceptance of cases of all kinds, including ones where a client may be guilty. A basic tenet of law is that every accused citizen deserves his or her day in court; in maintaining this pursuit, a lawyer’s legal ethics play a contributory role in allowing all to avail of this opportunity.

Analogously, society views doctors as professionals who pursue any methods possible in order to provide healing and treatment. They are problem solvers. However, what happens when a doctor encounters a patient with whom they do not morally agree with? Do they turn these patients away, letting the patient’s condition deteriorate? Outside of some very rare exceptions, absolutely not; instead, they separate their personal ethics from their professional duties and treat the patient, abiding by the Hippocratic oath. A similar principle applies to lawyers. They separate their professional and personal ethics and morals and do what they were trained to do, abiding by their own legal oath or code. Thus, the concept of legal ethics alluded to above makes perfect sense.

Following from the above, there remains a notable separation of ethics of the lawyer and of the client. While this point is trite, it is necessary to mention as there is often a perception that representation of a guilty person immediately requires the lawyer to approve of his or her client’s actions. Rather, what is required is defending one’s client. Thus, the legal ethics intrinsic to providing representation to one’s client may outweigh one’s views on a specific case i.e. to represent a client because that is the role of an attorney, regardless of the status of guilt. As such, lawyers often refrain from asking their clients if there is a possibility of truth to criminal accusations in order to avoid perjury. However, this also supports the idea that lawyers aim to maintain this distinction—one party is representing while the other is being represented.

Morals Morally, there are also a few aspects worthy of examination. For one, some lawyers choose to represent guilty clients as this circumstance presents a unique challenge for a powerful and persuasive attorney to turn a case around. Pursuing the best possible outcome for one’s client always presents challenges, and the presence of

Law Page 48 guilt only adds to this difficulty. Engagement with the pressures associated with a case of this nature are a driving force for many, which reflects the morals of the lawyer. Choosing to represent a knowingly guilty client is about who the attorney is and his or her abilities far more than the client’s guilty status. While fully recognizing the fact that trials are for the client, not the lawyer per se, maintaining a guilty-client case is a reflection of the attorney and his or her commitment to providing representation.

Moreover, the moral guilt a lawyer may face is potentially remedied by the various legal defences. For example, proving self-defense or provocation where applicable may exculpate a guilty client, but also have the unintended effect of providing moral reassurance to the lawyer who faces mental and emotional turmoil in representing someone who did, in fact, commit a crime. Admission of guilt tied to a purpose such as self-defense has the potential to help balance the truth of a case (allowing the client to admit to his or her crime) with the ethical requirement of representing a client to the best of a lawyer’s ability. This moral aspect highlights a lawyer’s ability to recognize when a client is guilty and also not perjure his or herself to simply protect one’s client from facing charges.

The morals associated with representing a guilty client extend beyond the courtroom itself. If counsel feels that their client presents a danger to his or her family, then a lawyer’s morality typically prevails, and he or she will pursue an option to protect society at large. This may be achieved through an injunction or restraining order, or any effort to protect the family and greater community. Representation is not blind, and this is the most important aspect to recall – lawyers still have a conscience, and while they have a societal duty to work in pursuit of justice, they also have a duty to protect society.

However, it is important for the lawyer to represent his or her client without completely compromising his or her morals. While lawyers tend to follow the ethical code of providing representation even to guilty clients, this does not apply blindly. In this way, all wrongs are not necessarily ignored; attorneys are not required to bear the burden of representing a guilty client, though many do. When moral implications may apply, there are options lawyers may implement instead. For example, attorneys may withdraw from cases, though this may have a consequential effect on the effectiveness of competent counsel, and it could result in the lawyer facing a grievance proceeding. With regard to a case nearing trial, if an attorney recuses him or herself without leaving a client with sufficient time to find a new lawyer, the client risks losing representation who fully understands the case. Yet ultimately, lawyers who are compromised by the truth of their client’s guilt will recuse themselves.

Legality In addition to the ethical and moral justifications for representing a client the lawyer believes to be guilty, there are a number of legal requirements that require a setting aside of the lawyer’s personal beliefs. These are necessary not only for the functioning of the legal system, but also to ensure that lawyers adhere to uniform standards of professional conduct.

Common Law Protections: The Adversarial System Firstly, there is the adversarial nature of the common law system. This means that the prosecution must prove its case before an impartial judge and empanelled jury, while the defence attempts to best refute the arguments the prosecution make. The question for lawyers is not whether the client is guilty or innocent; rather, it is whether the prosecution can prove its case beyond a reasonable doubt in criminal proceedings, and on the balance of probabilities in civil proceedings. The defence does not have to prove their client’s innocence, so much as poke enough holes in the prosecution’s case such that they cannot meet the requisite burden of proof. There is a difference between “factual” innocence and “legal” innocence. A lawyer can fulfill their obligation by trying to prove the latter. It is not their responsibility to argue the prosecution’s case, even if they suspect the facts may suit their own case

Constitutional Protections Secondly, there is a constitutional right to a fair trial enshrined across a broad range of jurisdictions. In Ireland, this right has been identified in Article 38.1 of the Constitution, which states that “[n]o person shall be tried on any criminal charge save in due course of law.” Similar provisions are interwoven into the constitutional fabric of nations from the USA to South Africa. In vindicating this right, the Irish Court has found that there is a right to legal aid when the defendant cannot afford a lawyer as enunciated in (State (Healy) v O’Donoghue [1976]), a right against self-incrimination (Heaney v Ireland [1994]), and an obligation on the State to provide equal “force of arms” when it comes to the provision of legal advice (Carmody v Minister for Justice [2009]). This means that, should the prosecution in a criminal case require the services of a barrister, the defendant is equally entitled to the services of a barrister. Were lawyers to refuse to act for clients they find to be reprehensible, it could arguably interfere with the ability of an accused to gain access to adequate legal representation. This would in turn impact on the ability of the Court to conduct a fair trial. Lawyers as individuals may regard themselves as having morals superior to that of their clients. However, lawyers as professionals must set this aside in order to ascribe themselves to the higher value of fairness enshrined within the Constitution.

Practical Protections: Codes of Conduct Finally, there is a code of conduct all legal professionals must ascribe to when representing clients. The socalled “taxi rank” rule has been explained in a submission by the Bar of Ireland to the Legal Service Regulatory Authority which stipulates that barristers “are obliged to accept instructions from any client, and are available to every solicitor in the State at the present time.” This prevents discrimination against prospective clients. Furthermore, Rule 3.1 of the Code of Conduct of the Bar of Ireland stipulates that “Barristers have a duty to uphold the interests of their client without regard to their own interests or any consequences to themselves or any other person.” Similar provisions are in place for solicitors, and these rules are reflected across the common law.

What does this mean? First, barristers cannot decline a client based on their personal beliefs, unless they can demonstrate a genuine lack of availability/conflict of interest. Second, the standards laid out by their profession oblige them to set aside their personal beliefs in the pursuit of the best interests of their client. It would be a severe infraction of these rules were a lawyer to deliberately set out to advocate in a manner contradictory to their clients best interests – an infraction that could lead to disbarment, or even legal charges for professional misconduct. Finally, the standards that are set out ensure that a lawyer is never acting in a personal capacity. A lawyer’s professional loyalty is to a legal system grounded in the notion that the only people capable of deciding on a person’s guilt are the individual with the gavel and the 12 people sitting in the jury box. As such, lawyers must abide by this principle if they wish to regard themselves as true legal professionals.

Conclusion While the presumption of innocence acts as a layer of protection for clients, lawyers still face ethical and moral entanglements when representing a guilty individual. However, there are both codes and mechanisms in place to further protect attorneys and also provide rationalizations for their actions in continuing to represent a guilty client. It is clear that the legal system is set up to buttress any philosophical justifications that can justify representing a client a lawyer may personally believe is guilty. One does not have to agree with every individual client so long as they acknowledge the collective interest in ensuring lawyers represent them in the best manner possible.