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Designing Technology to Protect Civil Liberties During the Pandemic

Thoughtful citizens who want to protect democracy and public health should take a pro-science and pro-civil liberties stance and avoid succumbing to fear and sloganeering.

To ensure public participation in this joint effort to slow the spread of the virus, citizens must be able to trust these new public health applications. (Photo: Monsitj/iStock via Getty Images)

To ensure public participation in this joint effort to slow the spread of the virus, citizens must be able to trust these new public health applications. (Photo: Monsitj/iStock via Getty Images)

The COVID-19 pandemic has led to controversy about the implementation of technological systems that allow for unprecedented surveillance of society. Public discussions tend toward polarized positions in which widespread contact tracing is either good health policy or it is a reprehensible invasion of privacy. This sharp contrast may be the result of the fact that right now there are examples of both.

More than 80 different technological projects are using personal data to track and combat SARS-CoV-2 listed at GDPR Hub.

More than 80 different technological projects are using personal data to track and combat SARS-CoV-2 listed at GDPR Hub. Many more tracking systems are under development. The construction of these systems is taking place without any meaningful public oversight, nevermind empirical research.

For scholars of global technology, this particular drive to use technology to tackle a worldwide crisis raises many concerns. More than 600 academics are calling for public contact tracing systems preserving citizen's data protection rights by design. This would mean that protocols and their implementations, including any sub-components provided by companies, must be available for public analysis. Also, the use of contact tracing apps must be voluntary, with the explicit consent of the user. These systems must be designed to be able to be switched off, and all data deleted when it is no longer needed.

Years before the widespread use of GPS-enabled tracking devices, an earlier health crisis raised similar concerns about personal liberty, democracy, and public health. States created lists of individuals who had tested positive for HIV. At first this information was kept private, but several states declared there was no such thing as medical anonymity. Florida published its list and many lives were ruined.

Today the HIPAA (Health Insurance Portability and Accountability Act of 1996) details the rights of patients to safeguard the privacy of their medical records. However, medical professionals also have a duty to warn those who may be at risk.

Going forward, what will this mean for individuals who test positive, or on the other end, do not yet have antibodies conferring immunity? Will each individual be allowed to make the decision regarding whether this information is made public? Will their family members, friends, children’s school, or their employers be notified?

Following White House guidelines, states are hiring hundreds of thousands of workers to become an army of ‘contact tracers.’ Due to the unemployment crisis, governments should have no trouble filling these hires. These new state surveillers will be aided by data provided by Apple and Google’s new Bluetooth coronavirus tracking technologies for iOS and Android smartphones. The promise of these apps is presented as a service to the individual: They warn us of others with whom we have been in contact who are infected.

To make good on that promise, contact tracing applications gather information about our movements and our interactions with others. Some of these new applications include safeguards intended to protect our right to privacy. But other applications do little to nothing in this respect and allow governments and major corporations to monitor us without our knowledge.

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Apple and Google officials emphasize that people must opt-in to share their COVID-19 status, and that governments will not be able to force us to use the technology. But what of our employers? Will corporations be allowed to force workers to reveal their personal data as a condition of returning to work? Employers will certainly have access to workers’ whereabouts if they are the entity conducting the tests—as Louisiana’s governor recently suggested they should.

Will this information be used to determine our individual freedom of movement? If so, what about those in low risk categories who do not test positive for immune antibodies—will they be barred from returning to work until they get the virus and have recovered from it? In South Korea, the Ministry of the Interior and Safety is using an app to enforce a mandatory two-week quarantine for anyone who has come within six and a half feet of a confirmed carrier of the virus, or been in the same room where a confirmed patient has coughed. These individuals are legally prohibited from leaving their quarantine areas and forced to maintain strict separation from other people, including family members.

Some of the makers of these tracking apps seek to placate any wary members of the public by claiming that individuals are not being personally tracked. Let’s assume that is true. Public interest technologists warn that data integration makes such claims less meaningful. Increasingly, all of our wearable devices gather and report information about us. Even when this information is singularly anonymous, in its combination, individuals are easily identified.

In the case of wireless, GPS-capable wristbands, think FitBits or Apple watches, you can be identified in part by the route you drive from work to home, or the band’s proximity to the nearest cell phone, as this information when combined is unique to the individual.

My research on blockchain technology and public policy considers how technologies open up many potential pathways for the future and forecloses other opportunities. Technologies are inherently neither good nor bad, but universally those that use them will do so in a manner that reinforces their existing interests and positions of power. Other researchers have documented the disturbing trend in corporate America of requiring workers to place technology on their bodies as a condition of employment. I strongly oppose requiring humans to merge with machines.

Using similar technology to electronic ankle bracelets worn by those under house arrest, or dog collars that issue a shock to enforce invisible fencing, thousands of Belgian port workers in Antwerp are being required to wear ‘social distancing bracelets’ as a condition of their employment. The bracelets begin vibrating like a cell phone when they move within about ten feet of each other, and the buzz intensifies and warning lights flash the closer to individuals get. Could this technology be used to interfere with union organizing? More than 500 companies in 100 countries have expressed interest deploying this technology among their workforce.

I am reminded of the GPS unit in our rental car my husband and I rented a decade ago in Jerusalem. As we tried to get directions to drive to the Mount of Olives, the GPS unit started to beep loudly and instructed us in no uncertain terms to turn back from East Jerusalem. The beeping became louder and more insistent the further we went. We turned back. GPS technologies were originally designed with a variety of purposes in mind. Whether or not separation was one of them, GPS was put to use to accomplish political goals. The danger of contract tracing applications is that they similarly will enable government officials to create and enforce borders among people and thus foreclose democratic exchange.

To ensure public participation in this joint effort to slow the spread of the virus, citizens must be able to trust these new public health applications. The framing of questions of liberty, sovereignty, and personal freedom should not be ceded to the far right. Similarly, technocratic public officials, and the liberals who tend to support them, should not willingly cede personal liberties and democratic sovereignty to states and corporations. Thoughtful citizens who want to protect democracy and public health should take a pro-science and pro-civil liberties stance and avoid succumbing to fear and sloganeering.

Sarah Manski

Sarah Manski is a global political economist at the University of California Santa Barbara, and the founder of the International Society of Blockchain Scholars. Her research has been published in the academic journals of Strategic Change, Law & Critique, Frontiers in Blockchain, and the British Journal of Sociology.

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