Fighting Fire with Fire? The Judicial Review of Anti-Pandemic Measures

 Andrea Pin, University of Padua

 

Many purportedly anti-Covid-19 measures have understandably raised academic eyebrows. Among such measures are emboldened executive powers, the suspension of constitutional guarantees – the states requesting the suspension of the European Convention have reached the unprecedented number of ten – or the deployment of highly sophisticated technological tools to trace contagion. Responses among constitutional law scholars have been mixed: while some have voiced their preoccupations for the survival of the rule of law, others have taken a more pragmatic approach, finding obvious theoretical leverage in Carl Schmitt’s theory of exception.

As most of today’s legal controversies end up in courts, it seems easy to predict that waves of litigation revolving around anti-Covid-19 regulations will flood many courtrooms. The measures deserving judicial scrutiny comprise both explicit limitations on fundamental freedoms or alterations of the separation of powers, and subtle regulations that exploit technological capabilities.

Cases about explicit freedoms’ limitations and the separation of powers are of utmost concern, as they touch upon the fundamentals of constitutional states. It seems safe enough to say, however, that courts are probably well equipped to address those issues: they can rely on libraries of constitutional theory, distilled constitutional texts, and ruminated judicial doctrines. Even courts embracing pragmatism should be able to distinguish between unacceptable legal solutions and acceptable deviations from the ordinary, or to put time constraints to such deviations, forcing the political branches to go back to normal mode as soon as possible. It is not guaranteed that the judiciary will be able to deter threats to the rule of law and secure the protection of fundamental rights; but courts certainly have what is necessary to pursue such goals.

Cases revolving around the deployment of technological devices are less straightforward. Until a vaccine is found and inoculated within the vast majority of world’s population, technology will help us control the pandemic. Thermal scanners, contact tracing apps, and urban data processing are only some of the means that allow people to live, work, study and socialise reasonably safely under the pandemic, and therefore are expected to stay with us for a long time, while strong, visible alterations of balances of powers and of fundamental freedoms – such as the freedom of movement – hopefully need to be only momentary. Deciding what technologies can do for us while we wait for a vaccine, and even when we can transition from physical distancing to technological distancing, cannot be easy, as courts will have to address several thorny issues that are at least partly new. What follows is a bird’s eye view of some of the most relevant theoretical problems that judges will face.

 

AI’s black box

Smart technologies increasingly embed artificial intelligence and use deep learning processes. They can process vast amounts of data through extremely complicated neural networks that imitate the human mind. Software can thus make inferences and guesses in ways that are not fully transparent even to software developers. Public policies that are based on this type of analysis therefore rely on arcane processing that is partly beyond human comprehension. Even in legal systems that accept only open access software or in which intellectual proprietary rights cannot limit judicial review, understanding how AI came to recommend a certain policy can be extremely difficult also for experts.

 

The expertise

If life in a pandemic has proved extremely complicated for individuals, developing sound public policies is exponentially more difficult. Deciding lockdowns, what they should consist of, when to lift them and under which conditions has required political branches to ask for help from a variety of experts. Physicians, data scientists, epidemiologists, psychologists, sociologists and statisticians are only some of the figures that governments around the globe have interacted with. This has happened virtually everywhere that a political decision impinging on fundamental rights has been made; but technological expertise adds a layer of complexity, as it relies upon the wisdom of largely inscrutable AI.

Exploiting such a wealth of expertise has given governments’ policies a veneer of rationality, but certainly not of transparency or democratic legitimacy. Actually, the political scenario has sensibly shifted. Political leadership has increasingly been measured with its responsiveness to the experts’ input; or, to put it in more cynical terms, political leaders have found in the experts’ support a convenient justification for their policies. It is not by chance that political polarization in several countries has taken the shape of a triangle, with politicians on one side, the people on another, and the experts on the third.

What happens when expertise goes to court? First, experts often focus on the efficacy of a certain policy. They therefore embrace a consequential approach, which considers the relationship between the goal and the success of a measure. This is a point that will be relevant later, when we consider styles of judicial scrutiny.

Second, expertise may not help AI become transparent. As technologies often embed black boxes, software experts may not be in the position of fully explaining a software’s diagnosis or prediction. Data scientists’ trial examinations do not replicate the old-fashioned experts’ explanations of the results of a polygraph. AI experts can explain how software works and the dataset that has been used; they can hardly explain exactly why a software delivered a certain output.

 

The types of scrutiny

Given the variety of technological solutions available and of their performance, judicial approaches should be able to compare their efficacy and their interference with fundamental rights. Courts will likely have to decide whether a certain digital solution outperforms the others, its benefits prevail over its downsides, and the balance it strikes among competing interests is preferable to other available options.

Such requirements seem to suggest that courts will make extensive use of proportionality analysis, especially in its four pronged-form. The four steps-proportionality test essentially analyses i) whether a measure is justified by a legitimate goal; ii) if such a measure concretely pursues its goal; iii) if it does so in the least disruptive way for the other interests involved; iv) if the measure’s benefit outweighs its damages to other interests. This multi-step process avoids justifying any means with ends, as the consequential approach would probably suggest (step i); it allows drawing from scientific expertise (steps ii and iii); and carves out room for political discretion, which can weigh benefits and damages after gathering scientific evidence (step iv).

Among the advantages of proportionality analysis is its concrete approach. When circumstances or evidence change, a new judicial assessment can replace the previous one. For example, although a tracing app can be useful to police the contagion, if the app is not sufficiently downloaded or activated and cannot work, then its deployment can be deemed unlawful as it invades individual privacy with no substantial benefit.

Conclusion

Contemporary democracies face a historical dilemma. Various types of expertise now provide public institutions with a reputation of rationality and reliability. They are, however, scarcely comprehensible to the majority of the population. Within the tech area, even experts must rely on opaque software performances. Adjudicating anti-pandemic measures that include technologically advanced policies therefore seems to mean much more than balancing competing needs. It also means being able to process multiple narratives and rely on a variety of sources coming from a variety of disciplines. It even encourages us to reconsider the role of the judge vis-à-vis other forms of expertise. Proportionality analysis can hardly overcome these difficulties, but can probably shape an ordered process to handle them.

 

Andrea Pin is Associate Professor of Comparative Law, University of Padua and Senior Fellow of the Emory Center for the Study of Law and Religion.

 

Suggested citation: Andrea Pin, ‘Fighting Fire with Fire? The Judicial Review of Anti-Pandemic Measures’ COVID-19 Law and Human Rights Observatory Blog (29 July 2020) http://tcdlaw.blogspot.com/2020/07/fighting-fire-with-fire-judicial-review.html

 

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