Governments Face Trade-Offs on Privacy in Fight Against Coronavirus

Thousands of people in the United States have tested positive for COVID-19, and the death toll around the world has surpassed 6,000. Italy is under lockdown and in New York City the government is demanding businesses including bars, restaurants and movie theaters be closed in an effort to stem the spread of the virus.  

After draconian measures were implemented in China to halt the rapid infection rate of the virus, including movement restrictions, large scale surveillance and forced isolation, it seems such measures are working, with new cases in China declining. Those same measures are unlikely to be adopted in the U.S., but the government and employers across the nation will have to navigate complex questions regarding privacy and public health in the coming months. 

“It is telling that at this point, public health experts are not calling for any of these measures; they have been clear that the tactics that will be most useful are social distancing and good hygiene like careful hand-washing and disinfecting,” says Rachel Levinson-Waldman, Senior Counsel of the Liberty and National Security Program at the Brennan Center for Justice, at NYU School of Law. 

“China has implemented surveillance tools at odds with core American values like freedom to speak, to travel and to assemble. Coronavirus – while undeniably a public health emergency – should not become an excuse to institute tools that would undermine those values.”

The implications of China’s actions are far-reaching when it comes to further compromising their citizen’s privacy, and could well be left in place even after the coronavirus is under control, as CoinDesk wrote about last week. 

Kathryn Waldron, a cybersecurity fellow at the R Street Institute, a think tank that promotes free markets and limited government, is skeptical we’ll see the rollout of surveillance technology in the U.S. on the same scale as China. First, the U.S. doesn’t have the scale of facial recognition infrastructure already in place to conduct mass surveillance that China does. Second, Americans are less likely to allow wide-scale government surveillance on the scale of China. 

This is not a time for employers to opportunistically collect additional information about their employees or to introduce employee surveillance measures.

“Government surveillance isn’t a new phenomenon to Chinese citizens,” says Waldron. “China’s Social Credit Score system already used facial recognition technology and nearly omnipresent surveillance to manage people’s daily lives and individuals with insufficient scores have already been denied the ability to travel on occasion, long before COVID-19 was a threat. Rolling out additional surveillance measures now isn’t radically new behavior.”

The Cost of Public Health

There is a tension between the needs of the public in staying safe and the erosion of privacy that might necessitate, and it’s unclear what path the government might chart forward in this regard. 

Levinson-Waldman says the calls, right now, are for people to self-isolate, and she hasn’t heard suggestions that technologies like those being used in China are going to be introduced here. 

But she raises the lockdown of Boston in the search for the perpetrators of the Boston marathon bombing, as something that might offer insights into the current situation. She says that may have been an understandable decision in the immediate aftermath of a major emergency, but it was also arguably a significant violation of civil liberties. There were other steps, such as not closing all public transit in the city or locking the city down that could have been taken. 

“It’s not hard to imagine that there could be some kind of governmental overreaction to this crisis, whether we’re talking about privacy or other civil liberties,” Levinson-Waldman says. 

The Electronic Frontier Foundation, a digital civil liberties nonprofit, has also rung alarm bells about protecting civil rights during a public health crisis. A recent statement from the organization says “many government agencies are collecting and analyzing personal information about large numbers of identifiable people, including their health, travel, and personal relationships.” Such measures, while justified during a crisis, should not become permanent fixtures of society, the EFF says. It suggests principles like an expiration date for any data collected, that any collection be based on science, not bias, and due process be adhered to when it comes to taking action on available data. 

“If the government seeks to limit a person’s rights based on this “big data” surveillance (for example, to quarantine them based on the system’s conclusions about their relationships or travel), then the person must have the opportunity to timely and fairly challenge these conclusions and limits,” reads the statement. 

The Workplace (From Home)

It’s not just the government that is having to navigate these complex questions. It’s employers too, as questions about exposure and infection are forcing employers to determine what personal information they need, or can, collect about employees to protect their workforce.

Under laws and regulations like OSHA, the Americans with Disabilities Act (ADA), HIPAA, and the Genetic Information Nondiscrimination Act (GINA), among others, they are bound to respect staff privacy and other rights. With coronavirus, that would preclude administering any kind of health testing or directly inquiring about an employee’s health condition or medical diagnosis,  says Elizabeth M. Renieris, a lawyer and a fellow at Harvard University’s Berkman Klein Center for Internet & Society. 

“One way to balance these competing demands is to employ general measures that don’t require invasive questioning or interference with individual employees,” she says. They should not be discussing any individual employee’s health condition or personal circumstances with other employees or third parties, except under limited circumstances where they might encourage the impacted employee to seek assistance from medical providers or public health authorities. 

“This is not a time for employers to opportunistically collect additional information about their employees or to introduce employee surveillance measures,” says Renieris. “Employees do not surrender all of their privacy rights in a crisis.”