The 'Stomp Reflex': When governments abuse emergency powers

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Surveillance powers have become ever greater in recent decades (Credit: Sergei Konkov/Getty Images)
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.

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 Covid-19 Digital Rights Tracker and 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 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 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.

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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 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 1978, approximately 30 countries were in some form of state of emergency. It had risen to 70 by 1986. By 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 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 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 US Congress itself to expand surveillance powers. Some scholars have labelled this "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 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 UK Police, Crime, Sentencing and Courts Bill contains what some critics consider to be 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 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, especially over Muslim communities. Similar measures for mass surveillance (often innocuously termed "bulk collection") have been 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 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 combatting terrorists or 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. 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. 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 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 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 debunked the idea of mass citizen panic as a myth that rarely occurs. As Rebecca Solnit in A Paradise Built in Hell and Rutger Bregman in 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 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 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 suppress information about the pandemic outbreak. Indeed, 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 delayed implementation of lockdown in favour of an early move towards herd immunity alongside allegations of 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 10 confirmed deaths. Taiwan was one of the first to act, 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 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 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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