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[22]Comment & Analysis
The 'Stomp Reflex': When governments abuse emergency powers
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(Image credit: Sergei Konkov/Getty Images)
Surveillance powers have become ever greater in recent decades (Credit:
Sergei Konkov/Getty Images)
By Luke Kemp28th April 2021
History shows that during times of crisis, politicians tend to reach
for more power. It's happening again now, argues researcher Luke Kemp,
and democratic citizens should be wary of the dangers.
T

There is an old adage that crisis brings both danger and opportunity.
During the Covid-19 pandemic, this has proved true for many
politicians.

As the coronavirus has spread, many governments around the world have
sought to tackle the pandemic by broadening their powers and abilities,
according to data collated from the [25]Covid-19 Digital Rights Tracker
and [26]Civic Freedom Tracker. A total of 32 countries have used
militaries or military ordances to enforce rules, which has not been
without casualties. In Angola, police shot and killed several citizens
while imposing a lockdown. Others have drawn on technology to grow
government oversight. To monitor rule-breakers, 22 countries have used
surveillance drones. Facial recognition programmes have been expanded,
internet censorship has occurred in 28 countries, and internet
shutdowns in 13. At least 120 contact-tracing apps are in use across 71
states, and 60 other digital contact-tracing measures have been used
across 38 countries.

Many of these are examples of emergency powers: exceptional actions
that states can invoke during a crisis to deviate away from existing
laws. Legally, emergency powers vary by country. Many are enshrined
under a constitution, give specific powers to the executive, and
require time limits. Many (but not all) require the declaration of a
"state of emergency".

When an enemy is at the gates or a disease in the streets, some
extraordinary measures are necessary. Lockdowns, for example, have
[27]saved millions of lives. But some measures may be built on a
fundamentally flawed vision of what to fear during an emergency. If
left unchecked, these emergency powers are prone to abuse, and what
started as an exception can frequently become the norm.

This is not an argument against swift, dramatic and often beneficial
actions such as lockdowns and travel restrictions. But these can be
implemented in an open and democratic fashion. Indeed, most publics
have expressed strong majority support for lockdown measures, and
indeed one recent study shows that [28]nearly 50% of the reductions in
transmission came from behavioural change before government imposed
lockdowns were introduced. Instead, there is an argument that by
stomping down through greater surveillance, strenghtened security
forces and expanded powers, governments risk making disasters worse.

Read more:
* [29]The greatest security threat of the post-truth age
* [30]How to heal the mass trauma of Covid-19
* [31]The knowns and unknowns of Covid-19

The Roman dictator was one of the earliest and most famous examples of
state-sanctioned emergency powers. When the Republic had a specific
problem, such as defeating an approaching enemy army, the Senate would
appoint dictators with wide-sweeping powers, including complete control
of the military. There were limits. The Senate retained control over
the budget, and dictators faced both a six-month time-period and heavy
social pressure to finish the task. They had to retire as soon as
possible. Remarkably, the role was rarely abused. Over 300 years, the
Roman dictators were appointed [32]95 times. Yet its misuse marked the
descent from Republic into Empire.
Rome appointed dictators, and for a few hundred years, it worked
(Credit: Getty Images)

Rome appointed dictators, and for a few hundred years, it worked
(Credit: Getty Images)

Emergency powers have come a long way since Rome. They have become
global and regular. In [33]1978, approximately 30 countries were in
some form of state of emergency. It had risen [34]to 70 by 1986. By
[35]1996 147 countries had mechanisms to declare states of emergency.
These are just states of emergency, and the actual provision and use of
emergency powers is even broader.

According to data from the [36]CoronaNet database, 124 countries
declared a state of emergency during 2020 in response to Covid-19, with
another several declaring emergencies in specific provinces and
municipalities.

Even prior to the pandemic, many countries existed in a perpetual state
of emergency. The US does not have a separate regime for emergencies.
Instead, presidents can activate "national emergencies" to gain access
to a range of 136 statutory emergency powers. As of February 2020 there
were [37]32 active national emergencies, the oldest of which dates back
39 years. The continuation of national emergencies is a bipartisan
affair and most politicians savour the expanded abilities at their
disposal. The continuous national emergency in the US has been renewed
by both Republican and Democratic administrations.

Even prior to Covid-19, many countries existed in a perpetual state of
emergency

Historically, particularly during World War One and World War Two,
emergency powers were granted to a prime minister or president through
a constitutional provision. But this is becoming less true with time.
The 2001 USA Patriot Act allowed the [38]US Congress itself to expand
surveillance powers. Some scholars have labelled this "[39]the
Legislative Model", where a parliament adopts emergency powers and
often gifts new powers to the executive. While this may seem more
democratic as Congress can introduce limits on what the executive can
do, it runs the risk of also making [40]it complicit in emergency
powers, normalising their use.
The 2001 USA Patriot Act allowed the US Congress itself to expand
surveillance powers (Credit: Eric Baradat/Getty Images)

The 2001 USA Patriot Act allowed the US Congress itself to expand
surveillance powers (Credit: Eric Baradat/Getty Images)

Perhaps more worrying is what can be called "emergency responses":
exceptional legislation that is not designated as an emergency power,
but is either passed during or in reaction to a threat. Many of the
counter-terrorism acts passed in the UK during the last two decades
were ordinary legislation, but would make most emergency powers seem
tame. Similarly, the current [41]UK Police, Crime, Sentencing and
Courts Bill contains what some critics consider to be [42]sweeping
provisions, but is being passed during a time that is less than ideal
for public deliberation and scrutiny.

The Stalker Complex

There is one network of powerful agencies that particularly benefit
from emergency powers. They include the big tech companies engaged in
what Shoshana Zuboff of Harvard University calls "Surveillance
Capitalism": the mass collective, use and sale of private, personal
data.

Big tech is joined by a cabal of intelligence agencies across the world
who have gathered more data and power over the past decades. As was
[43]revealed in 2013, most intelligence agencies had used the war on
terror and ensuing surveillance powers to construct an intrusive,
global web of surveillance. For example, the UK's anti-terrorism
legislation enabled scaled-up surveillance networks, [44]especially
over Muslim communities. Similar measures for mass surveillance (often
innocuously termed "bulk collection") have been [45]passed in numerous
countries over the past decade including, France, Australia, India,
Sweden, and others. This is not to mention the expanding, AI-powered
surveillance apparatus in countries [46]such as China and others around
the world.
Surveillance measures are far from a panacea, and there are dangers
with expanding their reach (Credit: Dominika Zarzycka/Getty Images)

Surveillance measures are far from a panacea, and there are dangers
with expanding their reach (Credit: Dominika Zarzycka/Getty Images)

Together these two networks form what I call the "Stalker Complex". It
is a grouping that benefits through profit and control from the use of
emergency powers and responses for surveillance, such as anti-terrorism
surveillance measures post 9/11 or new wide-spread tracking and
monitoring capabilities using GPS or Bluetooth during Covid-19.

There is surprisingly little evidence to support the effectiveness of
mass surveillance in [47]combatting terrorists or [48]viruses. For
contact-tracing apps, we don’t know how effective they are mainly due
to a lack of data. Nonetheless, surveillance remains a go-to response
when a disaster hits. Not because it works, but because it benefits the
Stalker Complex.

Surveillance remains a go-to response when a disaster hits

Are all the measures introduced during the coronavirus pandemic a
necessary evil to ensure public safety? It appears not. [49]A recent
review of the effectiveness of Covid-19 response measures published in
Nature Human Behaviour ranked police and army interventions,
surveillance and the activation of an emergency response in the bottom
seven of 20 surveyed measures.

This should not be surprising. There is emerging evidence that
emergency powers are usually used to benefit governments rather than
save lives. [50]One study of natural disasters and the use of
constitutional emergency provisions found that the more powers given to
the executive, the higher the body count (controlling for disaster
severity and size).

Many of the current Covid-19 measures are an acceleration of
pre-existing trends. As Reporters Without Borders note in their
[51]2020 World Press Index, countries with already heavy suppression of
media freedom tended to use the coronavirus as an opportunity to
intensify their censorial efforts. As [52]one recent study found, 87%
of the global population is now living in countries which can be
considered "repressed", "closed" or "obstructed". Covid-19 is not an
outlier, but another push down a path many people are already being
dragged.
Emergency powers to tackle the pandemic are also prone to abuse if left
unchecked (Credit: Cindy Ord/Getty Images)

Emergency powers to tackle the pandemic are also prone to abuse if left
unchecked (Credit: Cindy Ord/Getty Images)

The greatest danger is that these become a state of exception in which
the government transcends the rule of law. The entire Third Reich
occurred during a state of emergency that lasted 12 years. It began in
1933 after Hitler invoked Article 48 of the Weimar Republic, allowing
for the use of emergency decrees without parliamentary approval.

Such a despotic drift is not uncommon. The abuse of emergency powers
also marked the descent from Republic to Empire in Rome, the
centralisation of political power in the Middle Ages, and the
entrenchment of previously oppressive regimes in countries such as
Chile and apartheid South Africa.

The Stomp Reflex

Emergency powers tend to only go one way: top-down. During an
emergency, the knee-jerk reaction is always to stomp-down, to reinforce
those atop hierarchies in the state and significantly curtail the
freedoms, voice and agency of citizens, often in a draconian fashion. I
call this the "Stomp Reflex".

Some politicians play to fears that during times of disaster people
will descend into a chaotic mess. Yet, the overwhelming scientific and
historical evidence contradicts this pessimistic view of humanity.
Scholars in disaster risk management have now [53]debunked the idea of
mass citizen panic as a myth that rarely occurs. As Rebecca Solnit in
[54]A Paradise Built in Hell and Rutger Bregman in [55]Humankind have
documented, communities tend to display altruism and self-organisation
in times of catastrophe. This can be seen from the very beginnings of
Covid-19, from hackathons to create low-cost PPE to community-organised
efforts to protect the vulnerable. Instead, it is government and
military overreach that tends to worsen disasters.

While mass panic may be a myth, there does appear to be a phenomenon of elite
panic

While mass panic may be a myth, there does appear [56]to be a phenomena
of elite panic. This includes elites overreacting to their own fear of
panic (think of sending in troops to post-disaster areas), causing
panic for political purposes (such as the [57]post 9/11 war on terror)
or simply panicking on their own.

The irony is that the Stomp Reflex enables elite panic and suffocates
the self-organising abilities of society. This is apparent in the case
of Covid-19. The world lost crucial days and weeks to respond due to
China’s initial efforts to [58]suppress information about the pandemic
outbreak. Indeed, [59]China is the perfect case of how surveillance and
censorship actually prevents governments from hearing and acting on
public information. It is a trade-off of resilience for control.

Similarly, the countries with the highest infection rates have not been
characterised by a disproportionately less trustworthy or panicked
public. They have been marked by accusations of corruption and
mishandling at the highest levels. For instance, the UK government has
been criticised for a [60]delayed implementation of lockdown in favour
of an early move towards herd immunity alongside allegations of
[61]inappropriate allocation of governments contracts. The government
insists it had to award contracts "at speed" in response to the
pressures on the health service during the pandemic.

In the US, critics have pointed towards slow government action, faulty
diagnostic tests, misinformation, and cutting of staff and funds to the
Centre for Disease Control prior to the pandemic.

This Stomp Reflex is a power-grab: it is built on ideology, not
evidence.
Covid-19 is just one of many threats we will face over the coming
century (Credit:James Matsumoto/Getty Images)

Covid-19 is just one of many threats we will face over the coming
century (Credit:James Matsumoto/Getty Images)

Which leaders have done better? Taiwan is one example. To date, it has
been one of the best pandemic performers, having only had [62]10
confirmed deaths. Taiwan was one of the first to act, [63]spurred by a
health official spotting a highly up-voted post about the virus on an
online discussion board. Later the authorities reached out to civilian
hackers to put together [64]140 open source apps which showed the
distribution of PPE and masks, including which pharmacies were out of
stock. Both early action and later responses were crowdsourced. This is
part of a wider push for deliberative democracy by the Digital Minister
Audrey Tang.

Taiwan has just scratched the surface of a new approach. Yes, a
pandemic will require sacrifice and difficult actions. But there are
ways of doing this democratically, which makes use of the altruism of
citizens, ensures increased oversight over government and safeguards
personal liberties and freedom.

For instance, what if a rapid-response deliberative jury decided on
pandemic responses? As the political scientist [65]Hélène Landemore has
highlighted, such approaches are both more democratic and already have
a promising track-record. These are possible firsts steps on a path
towards what I call "Emergency Emancipation".

Covid-19 is just one of many threats we will face over the coming
century, from climate change to cyberwarfare and potentially
bioengineered pandemics. In the coming decades, we face a choice
between letting disaster steer the world towards control and
corruption, or democracy and solidarity. If we continue with the Stomp
Reflex, the true disaster would be that we move ever-closer towards a
world in chains.

--

Luke Kemp is a research associate at the Centre for the Study of
Existential Risk at the University of Cambridge.

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