A Balancing Act: Your Health vs. Your Rights

To encourage social distancing and limit the spread of the coronavirus, nearly one in five Americans have been asked by state and local officials to stay at home during the crisis.  Officials and medical experts say this extraordinary measure, an unprecedented response to a national health emergency, is essential to help mitigate the immediate threat posed by the virus.  “No, this is not life as usual,” New York Governor Andrew Cuomo said about living with the outbreak. “Accept it and realize it and deal with it.”

Many Americans are rising to the challenge. Whether by caring and shopping for seniors and other neighbors affected by the pandemic or communities showing their appreciation to local healthcare professionals, pharmacists, and grocery store employees tirelessly working to meet everyone’s needs.  During a health emergency, the public can tolerate, even embrace special measures if it means everyone temporarily sacrificing comforts and convenience to help protect people’s health.

If social distancing proves effective in slowing the spread of the virus then this unprecedented action can be withdrawn so daily life can begin returning to normalcy. But, if past national emergencies are a guide to how the government will react to this crisis, the American people must reject all efforts to roll back fundamental constitutional rights and protections or to expand surveillance powers without oversight and other safeguards.

Surveillance in the Time of Coronavirus

In pursuit of the urgent task of analyzing the spreading of the virus, government agencies are turning to private companies to collect and analyze vast troves of personal information of millions of Americans related to their health, travel, and personal relationships. The government has reportedly reached out to tech giants like Google’s parent company Alphabet (through another of its subsidiaries called Verily), to possibly draw user data from popular tech platforms and cell phones to monitor location and movement patterns, search inquiries, and purchase history.  The information may help doctors and other health experts defeat the outbreak, however, it raises a host of questions about who will have access to that data and how it will be used after the emergency has subsided.

That is why Defending Rights And Dissent applauds Oregon Sen. Ron Wyden and two House colleagues for writing a letter to President Trump calling on the federal government to use data to protect the health of Americans, but to “implement procedures to protect the privacy of Americans.” 

These protections are urgently needed, especially with disturbing reports of foreign governments unleashing mass surveillance tools, oftentimes involuntarily, to monitor infected and healthy people.   The Wyden letter outlines five steps the government can take to help keep the data it collects private, including using anonymous aggregated data and limiting use and access by private companies to prevent the data from being used for targeted advertising. “[P]rohibiting government intrusion into the private lives of Americans is, and has always been part of the DNA of our country, enshrined in the Fourth Amendment of our Constitution,” the letter says.  

There are also questions surrounding a new CDC proposal that would requires airline companies, if ordered by the agency, to provide the names and contact information, like email or phone numbers, of passengers aboard international flights landing in the U.S.  While it might be helpful in the short-term to track the itinerary of passengers coming from other hot spots, the airlines are pushing back saying they do not want to serve as data gathering agents for the government. 

“I’d love to give the federal government all the latitude that they deserve, but the reality is that [we’ve seen] abuse after abuse after abuse,” said Jake Williams, a cybersecurity expert and former member of the NSA’s hacking unit. “When you start adding in identifiers and email addresses, [physical] addresses, [and] other flights you’ve been on, you start to see patterns of behavior. Now, suddenly we’re in a little bit different territory.”

And according to the Washington Post, “Florida Gov. Ron DeSantis said Wednesday that air travelers from New York will not only be questioned by the National Guard when they arrive in the Sunshine State, but authorities also are developing an app to track the visitors while they are in Florida.”

Executive Overreach

Last week, the Department of Justice asked Congress for sweeping emergency powers that would effectively curb habeas corpus, a cornerstone principle of American constitutional law, by giving the government authority to detain people indefinitely without a trial.  Under the proposal, the Attorney General would have the power to ask judges to stop court proceedings during an emergency, including “any statutes otherwise affecting pre-arrest, post-arrest, pre-trial, trial, and post-trial procedures in criminal and juvenile proceedings and all civil process and proceedings.” 

Granting the DOJ this power would be dangerous.  Along with violating a person’s constitutional right to appear before a judge, this extraordinary executive power grab would make it easier to incarcerate people in the already overcrowded petri dishes of the country’s prisons.  As the virus spreads to jails and other detention facilities across the country, this could cause the number of infected correctional officers and inmates to spike.  

Rinse and Repeat?

Looking back to the period after the 9/11 attacks, the government’s response included a huge expansion of its surveillance powers through the Patriot Act.  It was sold to the public as an emergency measure to help keep America safe during a time of uncertainty, but ended up becoming a longtime component of our country’s security apparatus.  It was used by the FBI and the NSA to justify surveillance on millions of everyday Americans with little evidence that it helped keep the country safe. Over the years, federal courts found parts of the law unconstitutional, and it’s provisions have been largely abandoned by the same government agencies that claimed they were valuable law enforcement tools but provided no proof to the public.   Even still, the White House wanted to extend these spying powers beyond 2020.

Lessons from that experience are clear: powers and data collecting methods used during an emergency should be transparent to the public, have an unambiguous purpose and come with an expiration date. 

People’s fears and desire for protection in times of a health crisis should not be exploited to expand government powers indefinitely. Unorthodox measures should be of a temporary nature, limited to what is absolutely necessary, and fully in line with fundamental rights and our existing rules.  During and after a crisis, we should not have to choose between our health and rights.