Privacy Advocates Fear ‘Surveillance State’ Will Outlast COVID-19
Privacy advocates fear COVID-19 is creating a surveillance state that will outlast the pandemic. Experts during streamed events Wednesday disagreed how much access the U.S. government will have to data, given constitutional protections.
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The uptick in surveillance is reminiscent of the period after the Sept. 11, 2001, terror attacks, Center for Democracy and Technology Senior Counsel Greg Nojeim told the American Constitution Society. Like 9/11, COVID-19 shook trust in the government’s ability to protect, he argued. He noted that whistleblower Edward Snowden believes the surveillance state will outlast the pandemic.
The Communications Act includes emergency exceptions for government to compel personal information and communication when there’s a threat of serious harm or death, Stanford Law School Center for Internet and Society Privacy Director Albert Gidari told the Information Technology and Innovation Foundation. COVID-19 is making lawmakers and groups rethink the exceptions scale, he added.
The Fourth Amendment and Electronic Communications Protection Act provide protections against certain searches. American University law professor Jennifer Daskal noted exemptions for the threat of death or serious injury. Temporary derogation is allowed in extraordinary circumstances, said Access Now General Counsel Peter Micek, but constitutional rights still apply, so government doesn’t have absolute access.
The burden is on government when compelling location data, Nojeim said. If the information it's seeking is on healthcare, rather than a criminal context carrying emergency implications, the burden is heavier on government, he said.
A provider, which must act in good faith, would determine whether there’s an emergency, Nojeim explained. The company must mind liability when making a disclosure, he said, arguing the state isn’t in a good position to challenge a provider claiming no emergency. Violating a quarantine gives rise to criminal context, he said.
If public officials want access to location data, they must go through a judge or magistrate, Daskal noted. If they seek seven days-plus of location data, it requires a warrant, based on the Supreme Court’s U.S. v. Carpenter (see 1906130062), she said.
Terror-related data collection programs aren’t always useful, and invade privacy and allow discrimination, said NYU School of Law Liberty and National Security Program Senior Counsel Rachel Levinson-Waldman. In crises, think carefully about how information is used, she said.
Nojeim highlighted examples in other nations. South Korea is posting location data of people who have tested positive without naming the individuals. EU asks companies for aggregated, anonymized data.
It’s debatable whether data is helpful in combating COVID-19, said Waldman. There’s evidence of it predicting seasonal flu trends, but the value of tracing location information of novel coronavirus carriers is unclear, she said. Location tracking lets experts be “surgical” in tracking the virus, said Gidari. When officials learn that dozens of infected people were in the same place, it gives early warning for others to self-isolate, he said.
Access Now has concerns government will use any excuse to access private sector data, Micek said. Questions arise about what law enforcement might do with the data in the future, marginalizing certain populations, Waldman said. COVID-19 is a reminder of why the U.S. needs strong federal privacy legislation to minimize risks and properly harness information, Daskal said.