As Invasive Covid-19 Tracing Technologies Loom, ACLU Unveils Guidelines to Guard Against Overreach

As workers, employers, and elected officials continued to grapple with the economic fallout of the coronavirus pandemic and related lockdowns nationwide, the ACLU on Monday released a set of principles to help guide federal, state, and local policies governing the use of digital contact tracing technologies that could help curb the spread of Covid-19 but have generated serious privacy concerns.

"We don't yet know if any of these technologies will work, but we do know that we currently lack many of the protections needed to guard against abuse or overreach."
--Neema Singh Guliani, ACLU

The ACLU's new white paper explains that tech-assisted contact tracing tools that identify and notify anyone who may have come in proximity with an infected person "are different from traditional contact tracing, long used by health professionals, which typically relies on information from individuals to manually contact people who might have been affected."

The new document on Bluetooth-enabled tech followed the release of two previous ACLU white papers about Covid-19 contact tracing efforts, which addressed realistic limitations and general technology principles. As ACLU senior legislative counsel Neema Singh Guliani said in a statement Monday, "Good design features are not enough if this technology is implemented the wrong way."

"We don't yet know if any of these technologies will work, but we do know that we currently lack many of the protections needed to guard against abuse or overreach," Guliani added. "If we as a country decide to go down the path of tech-assisted contact tracing, our lawmakers must first enact robust safeguards to prevent these tools from exacerbating existing disparities and violating our civil rights and liberties."

The new white paper argues that "at a minimum, if a contact tracing app or technology is used, state and local governments and companies should adopt strict policies and procedures" to ensure effectiveness; voluntary use; equity; use restrictions; enforceable rights, and transparency, oversight, and accountability.

"Even if these tools are adopted with appropriate safeguards, it is important to recognize that they are far from a silver bullet," the paper says. "They will not resolve testing shortages, which are essential for notified individuals to determine if they have in fact been infected."

"They will not ensure individuals who are infected get adequate and equitable treatment," the paper continues. "And they are not a substitute for clear guidelines for the public to determine what they can do to better protect themselves, their families, and their communities. Thus, these tools can only be part of a broader health strategy that resolves these and other significant issues."

The document's discussion about whether tech-assisted contact tracing will actually work as intended points out that "we have already seen how failure to apply accuracy and effectiveness benchmarks may be adversely affecting public health outcomes."

"These tools can only be part of a broader health strategy that resolves these and other significant issues."
--ACLU white paper

"For example, many have expressed concerns that inaccuracies in antibody testing could give individuals a false sense of security or be improperly relied on to make public health decisions," the paper says. "This problem is further exacerbated by the lack of certainty over what, if any, immunity may be conferred to individuals who test positive for antibodies."

Meanwhile, a related blog post by ACLU senior staff attorney Esha Bhandari and Racial Justice Program director ReNika Moore challenged so-called "immunity passport" proposals that would allow employees who test positive for coronavirus antibodies to return to work sooner than others.

"There are also ongoing questions about the accuracy of various Covid-19 antibody tests," Bhandari and Moore wrote. "But even if we eventually were to gain confidence that individuals with Covid-19 antibodies may have immunity from reinfection for some period of time, there are serious civil liberties and civil rights harms from making workplace decisions on that basis."

The experts detailed how such measures could "harm public health, incentivize economically-vulnerable people to risk their health by contracting Covid-19, exacerbate racial and economic disparities, and lead to a new health surveillance infrastructure that endangers privacy rights."

Given the plethora of concerns related to such proposals, Bhandari and Moore concluded that "until there is a reliable, affordable, and widely accessible treatment or vaccine for Covid-19, employers must maintain best practices to protect workers and reduce Covid-19 transmission in workplaces."

"Instead of expending resources on the development of immunity passports, policymakers should focus on the implementation of widespread, free, and quick testing for Covid-19, without creating a new privacy-invasive data infrastructure that threatens everyone's rights," they wrote. "There are better ways to both advance public health and protect individual rights that we should focus on in order to emerge from this crisis."