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Covid-19, State Collaboration and Data Mining, Oh My!

-- By LiliaJimenez - 12 Mar 2021

Introduction

When COVID-19 became a concern, many thought it would not last more than a few weeks. The pandemic has now reached its one-year mark and people from all around the world have been forced to embrace a “new normal.” This new normal of working remotely, spending more time using screens, visiting covid testing sites and now, getting vaccinated, has thrust society deeper into the realm of digital reliance and vulnerability.

Access to covid testing and the vaccines often requires sensitive information and signed agreements, which, in the midst of a pandemic where many are anxious about having the disease, are signed blithely. While the vaccine has offered optimism for getting back to normalcy, individuals are eager to do anything that will allow them the “freedoms” of the past like being worry free about covid, traveling, attending concerts, sporting events and others alike. These freedoms, it seems, may come at a cost: their data and privacy.

The Perfect Storm for Mass Data Collection

The pandemic has aided tech companies by the vast amount of sensitive health and personal information that individuals have forked over in the name of patriotism, caution and health during the pandemic.

Tech companies have stepped in to help the federal government control the mess that is/was testing and vaccine roll outs. Just as big pharma rivals have collaborated with each other to make vaccines, big tech competitors have also joined forces to make contact tracing apps and programs that aim to help prevent the spread of covid-19.[1] Most recently, a start-up company “Dr. B,” created an app that connects vaccine providers (including state run mass vaccination sites) with extra doses, to people who are willing to get the vaccine in a moment’s notice.[2] The app is free but requires a host of personal information to sign up.[3] So what do these government, state and private partnerships mean for liability and individuals privacy? If left unchecked, the troves of data collected by private companies and shared with governments are equivalent to a state of surveillance and a deprivation of a person’s right to live a private life. [4]

The Privacy Dilemma, A Legal Loophole

Some states, like New York, have partnered with companies like IBM to create covid tracing apps that collect data about your personal information, location, and test results.[5] Recently, Andrew Cuomo announced that there will be a pilot program in New York testing a technology app similar to a “covid-passport” called, the Excelsior Pass.[6] The digital-pass will indicate and confidentially transfer information to the event space about the status of an individual’s covid results and vaccination status.[7] While covid testing is a reasonable requirement for entry to events and activities like traveling, as it will help curb the spread of the coronavirus, the app’s voluntary component is misleading.

Due to the increase in apps and covid-19 related forms and requirements being required, the Excelsior Pass is likely to be mistaken as a digital requirement for proof of covid-19 status. Therefore, the State’s indication that this, and other private partnered “passport apps”, are a voluntary service hides behind the guise of convenience and the state’s requirement to show results or vaccination to attend an event. Depending on how strictly it enforces adherence to the app of event go-ers, should be deemed unconstitutional.

Unfortunately, the dilemma that exist between the government and private partnerships, is that to be held liable for a constitutional violation, a private party must have engaged in state action.[8] While many of the Covid-19 related apps are created to aid governments in the pandemic the private companies who create them are not considered, nor are likely to be considered, state actors.[9] Instead, as commentators point out, “Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.”[10] This dilemma exists is spaces outside of Covid-19 related data and information sharing as well.[11]

What The Future Holds

The dangers of unchecked state surveillance expanding through the circumstances of the pandemic and being abused are not far out of reach. Commentators have noted that in Europe, “national governments and EU leaders have told wireless carriers to hand over huge stores of data on people’s movements to help predict the virus’ spread.” Poland’s government ordered “people who may be infected to download a smartphone app that monitors whether they are complying with quarantine orders.”[12] And most concerning, Singapore’s Minister of State for Home Affairs revealed that data collected and shared from the countries tracing apps which indicated would never be accessed unless to be contacted by a trace team, “can in fact also be used ‘for the purpose of criminal investigation’.” [13] Some of the Covid-19 tracing apps are eerily close to the requirements other countries have put in place, and are essentially one step away from state action. Additionally, the lack of sufficient privacy policies, evoking the third party doctrine, is no longer an excuse now that the pandemic has reached its one-year mark. Covid-Passports and apps should make individuals question what limits on power are put in place to effectively govern state action, without passing liability through a legal loophole and how can these limits go beyond the pandemic to protect individuals rights to a private life.

Footnotes:

1. Digital contact tracing can slow or even stop coronavirus transmission and ease us out of lockdown, University of Oxford Research, https://www.research.ox.ac.uk/Article/2020-04-16-digital-contact-tracing-can-slow-or-even-stop-coronavirus-transmission-and-ease-us-out-of-lockdown 2. Katie Thomas, Hunting for a vaccine? This app will help you find one, NYT (March 9, 2021), https://www.nytimes.com/2021/03/09/health/covid-vaccine-leftover-doses-dr-b.html?action=click&module=Top%20Stories&pgtype=Homepage 3.Id. 4. See Evan Halper, Lawmakers warn coronavirus contact-tracing is ripe for abusive surveillance, LA Times (April 26, 2020), https://www.latimes.com/politics/story/2020-04-26/privacy-americans-trade-off-trace-coronavirus-contacts. 5. See https://www.nbcnewyork.com/news/coronavirus/ny-pilots-covid-passport-of-sorts-to-fast-track-reopening-heres-how-it-works/2919254/ 6. Id. 7. Id. 8. See 42 U.S.C. § 1983. 9. See Vivek Ramaswamy and Jed Rubenfeld, Save The Constitution from Big Tech, Wall Street Journal (January 11, 2021), https://www.wsj.com/articles/save-the-constitution-from-big-tech-11610387105. 10. Id. See also The Third Party Doctrine, which, holds that people who voluntarily give information to third parties "no reasonable expectation of privacy," which then allows the United States government to obtain information from third parties without a legal warrant and without otherwise complying with the Fourth Amendment. 11. Id. 12. Id. 13. Andreas Illmer, Singapore reveals Covid privacy data available to police, BBC (January 5, 2021), https://www.bbc.com/news/world-asia-55541001.

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