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Health Versus Privacy: The Coronavirus Dilemma

April 17, 2020
Legal News

Public health experts say some form of digital tracking will be necessary as people return to a new normal after stay-at-home orders are relaxed. Apple and Google—which are quite expert at data collection, as we all know—have announced plans to launch a “voluntary” cell phone app that health officials can use to reverse-engineer sick patients’ recent whereabouts, providing critical information for tracing.  In Asia, many governments did not seek permission before tracking their citizens to identify suspected coronavirus victims.  In China, the government not only used mobile phone location data but also travel records and security cameras to identify people who were in contact with coronavirus patients. Those residents were then forced to isolate. In the U.S., however, privacy laws and expectations require a different approach.

Americans have demonstrated a surprising willingness to have their freedoms restricted or eliminated, ostensibly in the interest of the broader public good. The September 11, 2001, terrorist attacks were a watershed moment, ushering in sweeping government surveillance power intended to thwart terrorism.  This power has since been used for domestic spying on U.S. citizens.  Once relinquished, such protections are rarely restored.  The Patriot Act and its use for domestic surveillance—which the Foreign Intelligence Surveillance Court upheld—bear witness to this fact.

The public health interest in stemming the spread of coronavirus portends to chip away, if not wholesale eliminate, many of the privacy rights and expectations we enjoy.  And it will be more than the government who whittles away our privacy. It will be companies, such as Disney, that insist on taking your temperature before allowing you to enter and require proof that you have not been in contact with anyone infected with coronavirus. Such proof may come in the form of the “voluntary” app that you must show or share access to before being allowed theme park entry. It is not a stretch to imagine a requirement that you have “voluntarily” used the app for 14 days preceding entry; upon presentation, your temperature will be taken and your app read, analyzed and traced to see if you have come in contact with anyone who has been infected. If your temperature is elevated or your app reveals that you are at risk for infection, you will not be allowed in. Similar requirements for smaller businesses, such as drug stores, grocery stores, etc., could follow. With complacent cooperation from private businesses—all for the sake of public health—the government will be able to, in effect, coerce citizens to “voluntarily” relinquish their privacy.

The sad fact is that unless we want to live as recluses and eschew recreational and retail facilities, we may have little choice but to give up the last vestiges of our privacy: to health information and to detailed tracking of where we have been, what we have been doing and with whom. This justification for giving up our privacy is reminiscent of Star Trek II: The Wrath of Khan (1982), in which Spock observed: “Logic clearly dictates that the needs of the many outweigh the needs of the few.” Yet, logic equally militates in favor of retaining our privacy, standing firm against such an extraordinary ask by our government and recognizing that our collective right to privacy is equal to, if not greater than, the government’s need for public health information and tracking. It is far from a foregone conclusion that the public health need outweighs the public’s privacy rights.

Monumental threats pose the most difficult challenges. The attacks on the World Trade Center and Pentagon in 2001 and the coronavirus pandemic are in this sense similar. Americans readily relinquished many cherished constitutionally protected rights after 9/11, rights that we will likely never get back. In the time since, we have seen repeated abuse of the power we relinquished by those in the government. Our forefathers foresaw this, and we are now living it. As we are “encouraged” to “voluntarily” relinquish more of our rights, especially our rights to privacy, we must be mindful of our elected leaders, a/k/a politicians’ propensity to abuse power. Most importantly, we must be unafraid to secure the Blessings of Liberty to ourselves and our Posterity. We must refuse to give the government what is left of our freedoms. We have felt the result of doing so, and it has weakened the fabric of our democracy.

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