While COVID-19 is not the deadliest virus in terms of fatality rate, it has proven to be one of the most dangerously transmissible. Airborne droplets containing the virus are passed from person to person, sometimes incubating for as long as fourteen days before manifesting symptoms. If a viral infection rate, otherwise known as the R-0, rises above one, a virus will continue to spread. Rising R-O rates in Germany have caused concerns about reopening the country as leaders fear a second wave of infection similar to that of Singapore. It is clear that containment of the virus is vital to any reopening strategy, and infection data will drive such public health policy. However, the means by which such data is collected comes with the potential for abuse of power and infringement of privacy rights. In the United States, such concerns are specifically rooted in past governmental abuse of power in the fight against terrorism following the September 11 attacks. By examining the legal and constitutional disputes surrounding the balance between individual privacy and public safety, with reference to previous anti-terrorism policies, it is possible to anticipate potential difficulties with the implementation of “track and trace” programs in the US.
The US faces a unique dilemma in confronting the COVID-19 pandemic as, by its very nature, the nation constitutionally structured around decentralising power. The Tenth Amendment, for instance, mandates that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”. The American Bar Association notes that enforcement of restrictions upon movement, such as quarantines for medical purposes, was established as the jurisdiction of individual states in the 1824 Gibbons v. Ogden Supreme Court ruling. This arrangement led to a patchwork of lockdown policies during the initial stages of the coronavirus outbreak and as such, talking about a singular US response to COVID-19 would be inaccurate.
Regardless of which level of government undertakes the task of enforcing containment, it is clear that digital surveillance will play some sort of role. Recently, a vacationer in Hawaii was arrested after posting photos on Instagram flaunting his noncompliance with the state’s two-week quarantine rule for travelers. More advanced tracing technology incorporates testing data with communication and location-related functions in mobile technology to isolate potential carriers of the disease.
Similarly, Israel’s national intelligence service, Shin Bet, has acquired the data of smartphone users to track movement and notify individuals via text to self-isolate. This decision has already come under fire from civil rights advocates and coincides with a time when punishments for violating isolation orders have become more draconian. Meanwhile, countries including Singapore and the United Kingdom are working with Apple and Google to improve app technology using Bluetooth technology to more accurately assess interpersonal contact with the ultimate goal of accurately determining and isolating individuals brought into contact with COVID-19 patients.
These technological innovations may prove helpful in containment, but they present their own ethical and legal challenges surrounding the individual’s right to privacy. In China, “health code” apps with QR codes allow its users to enter public spaces and public transport while transmitting data to the police. Particularly in light of current tensions between police and protestors in the United States, the implementation of such programs would undoubtedly prove controversial. President Donald Trump has already lambasted Apple and Google’s tracing technology as leading to “big constitutional problems”. Indeed, the Fourth Amendment of the Constitution states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”. An explicit right to privacy has been recognised since the 1965 Griswold v. Connecticut case, as derived from the penumbras of various amendments including the Fourth.
Legal proceedings concerning the infringement of privacy have invoked Constitutional Amendments and legal precedents, demonstrating legitimate obstacles to establishing tracing programs. The American Civil Liberties Union (ACLU) famously filed a lawsuit against the National Security Agency (NSA) in 2013, arguing against the constitutionality of the collection of metadata from the cell phones of Americans on the grounds of the Fourth Amendment. In 2015, the Second Circuit Court of Appeals determined that the NSA’s practices overstepped the powers given to it by Section 215 of the Patriot Act to investigate suspected terrorist activities.
A recent federal court ruling that the Transportation Security Administration’s (TSA) practice of searching the mobile devices of travelers at airports is deemed unconstitutional presents thematic similarities with two legal standoffs between Apple and the FBI. After both the San Bernardino shooting in 2015 and a 2020 attack on a Pensacola naval base, Apple refused to cooperate with law enforcement to create software to unlock the iPhones of perpetrators on the grounds of protecting consumer privacy. Given public sentiment and legal tensions surrounding infringements upon privacy in the US, it is difficult to imagine a scenario where a program like South Korea’s thoroughly effective Epidemic Investigation Support System, a program combining phone and credit card data to track infected individuals, could be implemented without opposition. This reality is vital for legislators and public health officials to remember when implementing long term containment strategies.
Over the past two decades, Americans have witnessed privacy rights infringed upon in the name of national security, with anti-terrorism legislation eroding public trust in government institutions. In the wake of the 9/11 terror attacks, the Patriot Act was enacted to gather intelligence in the name of national security. It included extreme measures such as the waiver of search warrants and the authorisation of law enforcement officials to access personal communications. However, such efforts rarely caught terrorists and frequently led to abuse of power.
Of particular relevance when discussing surveillance policies and the restriction of movement is the placement of non-criminal civilians on the “no-fly list” — a flawed practice which has deemed thousands of individuals, including members of Congress, as security threats and prevented them from boarding planes to or within the US. The Brennan Center, a civil rights-oriented policy research group, describes the lessons learned during this time as a “cautionary tale” that is relevant while the Centers for Disease Control and Prevention (CDC) works with tech corporations to produce contagion-tracing programs. The CDC observes that, while the turn to technology to protect the safety of the public is a worthy aim, the programs enacted after 9/11 were flawed and failed to produce actionable intelligence.
Such concerns over privacy are at the heart of the debate surrounding the implementation of tracing apps. The least successful ones, such as Utah’s “Healthy Together” app, are voluntary and have been used by only two per cent of the state’s population even after millions of dollars were spent developing the system. Conversely, Taiwan’s contagion containment success is owed in part to the government’s use of cellphone data to isolate spreading clusters without the consent of its citizens. Congress is currently working on bipartisan legislation to clearly define the privacy rights of tracing app users, which will likely be influenced by the nation’s past privacy rights controversies as well as a need to produce efficacious public health policy.
The threat posed by a second outbreak of COVID-19 is serious and the role lockdowns in the United States have played in preventing the apocalyptic overcrowding of hospitals witnessed in Italy should not be dismissed. Learning to safely adapt and reopen would likely be aided by utilitarian track-and-trace programs. However, the lessons learned from the Patriot Act’s abuses should not go unlearned. Even if it were logistically feasible to implement a widespread proximity tracing of mobile phones in the United States, such a program would likely be struck down as illegal, and not without good reason. Nevertheless, as the US reopens, the time between now and widespread access to treatments and vaccines for COVID-19 will be one fraught with uncertainty.