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Excerpted From: R. Chantz Richens, Privacy in a Pandemic: An Examination of the United States' Response to Covid-19 Analyzing Privacy Rights Afforded to Children under International Law, 28 Willamette Journal of International Law and Dispute Resolution 244 (2021) (271 Footnotes) (Full Document)


Among legal disciplines and focus areas that have emerged and evolved in the twenty-first century, the concept of child law has been at the forefront. An examination of the historical, psychological, sociological, and political insights into childhood show the metaphorical explosion of research devoted to understanding children and childhood within the current and last century.  It would follow that a post-world war world committed to elaborating and safeguarding its members inherent rights would extend similar considerations to the world's younger inhabitants.  With the stage set, several landmark understandings and international agreements came to existence between 1924 and 1989 which were established to secure rights to children, culminating in the Convention on the Rights of the Child (hereinafter, the CRC). The international instrument, containing over fifty articles centered around child welfare and development, is considered “the most important result of the children's rights movement in international human rights law.” Such praise is not without merit. The CRC has received “near-global ratification,” with the United States bearing the scarlet symbol of being the only state not party to the CRC. Furthermore, the CRC has blazed a trail for children, establishing them as an “active 'subject’ of international law who can be a holder of rights” as opposed to some kind of legal “'object.”’

Just as the CRC impacted the global stage, so, too has the COVID-19 pandemic. The COVID-19 virus has affected nearly every aspect of life for communities around the world. Economies have suffered, physical health concerns have become paramount, mental and social health has become a casualty, and every-day domestic life has been turned on its head from quarantine efforts and social distancing guidelines. This is to say little of the legal issues, questions, and concerns that have arisen due to the disease's effect on the world. Concerns about one's privacy have been among those expressed during the pandemic. Governments across the globe have implemented contact tracing measures and several tracking services exist to monitor individuals' movements. This practice, however, has been cause for some alarm. According to a Pew Research study, nearly half of Americans feel that it is “at least somewhat unacceptable” for the government to track positive cases of the virus using cell phone data to deepen understanding of COVID-19, while almost two-thirds of the national population feel that it is “somewhat or very unacceptable” to use that same data to track individual movements to ensure compliance with social distancing guidelines.

The important nature of privacy rights and the national interest in these rights, as caused by the COVID-19 pandemic, create a situation where an analysis of children's privacy rights is long overdue. The United States, a signatory to the CRC, can do more to fulfil its obligations to the CRC and its youngest citizens, specifically in the protections it affords its children's privacy rights. The United States can do so by establishing a greater understanding of and respect for children's privacy rights through a new legislative undertaking, founded on ideas enshrined in the CRC that children and parents or caregivers can together come to an understanding of children's rights, making decisions as informed by those rights. In advocating for such an approach, this paper will first discuss the CRC as well as the unique circumstances of the United States' relationship to the CRC and the United States' duties as a signatory. In addition, this paper will examine the current approaches the United States has taken to protect children's privacy rights both before and in light of the 2019 novel coronavirus and the shortcomings therein.

Lastly, this paper will advocate for the implementation of a new framework, centered around a presumption that children and parents will work together to reach a greater understanding of children's role in the legal sphere. This will be informed by an analysis of obligations that have been recommended for states to consider in protecting such legal actors' right to privacy, specifically concerning identifying data that has quickly become one of the greatest legal concerns in the midst of the pandemic. By so doing, caregivers will be able to help children understand their inherent autonomy as players in the legal arena during especially formative years.

[. . .]

The COVID-19 pandemic has disrupted life for individuals, nations, and, arguably, the globe. Work, school, and nearly all other aspects of life were uprooted for many as nations faced questions of national importance on how to combat a virus invisible to the naked eye. Many organizations have tracked, and continue to track, the number of cases on national, state, and county levels in the United States. Some even track and report on movement trends within populations. These databases, which compile information and make it widely available for the public, have seemingly come into being with an apparent lack of control over them.

These databases and other practices that have been established during this time have started a national dialogue on the rights of privacy for individuals. In this dialogue, however, the world's youngest players' voices must be heard as well as those of adults. The Committee on the Rights of The Child explain that “[d]uring consultations, children expressed the view that the digital environment should support, promote, and protect their safe and equitable engagement” and that children are aware of data collection practices and desire to understand more. UNICEF bemoans the plight of children left from the table, stating that “children are part of the digital health surveillance ecosystem and should not be an afterthought in the creation of tech-driven solutions or policymaking.”

An analysis of children's privacy rights in the United States amid COVID-19 necessarily implicates several considerations. Several principles have been established in international law that are binding, to some extent, on the United States as a signatory to the CRC. Because of this, the United States has a duty not to frustrate the purpes of the international agreement. In advocating for greater compliance with the CRC, this paper has examined the United States' duties to the CRC, analyzed current ways the United States has engaged with children's right to privacy, and, lastly, advocated for new legislation which could help protect children's right to privacy by encouraging discourse between caregivers and children.

While the need for such a new framework is warranted because of the effects the COVID-19 and data collection, such framework has lasting impacts that arguably do more than help the United States become more compliant with the CRC. The rising generation are engaging with technology at a rate that was arguably unforeseen before it became the reality that is the current global culture. While this may be a cause for alarm, some call this a “silver lining,” or at least the potential to become one, if caregivers are willing to help guide children at a younger age, having more time to establish “healthy habits” surrounding technology use. While this paper has focused on the need for understanding and appreciation of child privacy rights in terms of data collection and COVID-19, the same principles and framework may be used for other areas of life that pose risks to children's privacy. The COVID-19 pandemic has begun a conversation that, in order to continue to protect children and create competent global citizens of the future, must continue.

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