Executive Summary
Inherent in the introduction of any new technology is the potential for conflicts. In relation to the introduction of technologies for the management of COVID-19, concerns have been voiced that technologies may not necessarily be in everybody's best interests. In particular, COVID-19 contact tracing apps, which should help identifying, through digital means, persons who may have been in contact with an infected individual have raised concerns about the negative impacts on fundamental freedoms, including freedom of association, and privacy. Contact tracing apps are just one example, but similar concerns may apply to other technological responses such as the use of surveillance cameras, facial recognition technologies etc.
In democratic nation states, by reducing arbitrary exercise of power, the Rule of Law is an essential precondition for government legitimacy, albeit not the only one. During a period of emergency, when the powers available to government shift to enable them to deal with that emergency, it is essential to look back to what good law is about and why the Rule of Law is so important.
The Rule of Law provides a perimeter of legitimacy of the restrictive measures taken in response to a crisis or in an emergency situation. Put differently, responses to public emergencies (including data driven responses in the context of health emergencies) are often introduced and/or implemented through laws and regulations, which should be in compliance with Rule of Law principles. Adherence to Rule of Law safeguards and other international principles, when adopting measures during an emergency, are expected to strengthen public trust in institutions and consolidate the legitimacy of the measures. This should ultimately bolster their effectiveness through increased compliance.
The paper addresses the following questions:
• How is the Rule of Law relevant to the introduction of new technologies?
• What are the different conceptions of the Rule of Law?
• What are the core elements of a functional definition of the Rule of Law?
• What are the advantages and limits of using a Rule of Law lens when assessing the introduction of new technologies, especially in times of emergency?
