Privacy is a judicially created doctrine that expanded with the Digital Age. For the last twenty years, privacy has come under attack from both security and safety issues alike. Now comes COVID-19 to the table. And it’s a game changer for privacy.
COVID-19 may fundamentally change privacy law. Once again we are asked as a nation to decide whether our privacy rights are more important than our safety. After 9/11 the Patriot Act increased government surveillance powers and the majority of Americans accepted this new role of government in exchange for increased security.[i] COVID-19 is a threat to our safety. Americans seem split over whether the current impact on our civil liberties including privacy is acceptable given the risk COVID-19.[ii] However, if a virus with a much higher mortality rate, such as Ebola, were at issue, it seems doubtful anyone would object to giving the government the power it would need to keep us safe. So then, the only true evaluation of the impact of COVID-19 on privacy must be viewed in light of the severity of the risk and the necessity of the intrusion on our privacy rights.
The two areas of privacy law at issue that are most concerning are surveillance and biometric data. Both areas of law are in their infancy compared to the technology that exists and changes every day. However, technology that most of us have never heard of or even understand, is now being used to track us and the spread of the virus. Biometric data is being gathered every time our temperature is taken to gain entry into an establishment or even board of plane. Drones are taking temperatures from the air and our cell phones are being tracked to trace the spread of COVID-19.[iii]
The collection of this information is a scary and dangerous proposition. The Supreme Court ruled in Carpenter v. United States (2018)[iv] that the Stored Communications Act[v] did not allow the FBI to seek phone location data from a telecom provider to track other members of a robbery gang after seizing one of the suspects’ phones. Yet today cell phones are being tracked to fight the spread of COVID-19. [vi]
No doubt, exigent circumstances will tip the scale in favor of allowing such violations of the Fourth Amendment. However, what happens after COVID-19? It does not seem likely that the government will voluntarily relinquish this new wealth of information that could be used for tracking criminal activity, establishing a person’s routine or even determining a person’s health status.
The danger is not in the collection of this data for limited purposes, the danger is that this information can be combined with other databases of information collected by Big Data companies, Social Media Platforms and HIPAA protected information to produce a highly individualized profile of a person.
Many people would say, “that’s not what the framer’s intended.” But actually, the founders weren’t all that interested in privacy. Instead they focused on security and safety. However, today privacy is essential. Privacy from surveillance was an issue before COVID-19 i.e. drones and now drones are being used to find groups of people gathering without social distancing.[vii] This is a scary invasion of our privacy.
So far the Supreme Court is hesitant to view the use of drones and aerial phots as a violation of our expectations’ of privacy. In California v. Ciraolo, (1986)[viii] the court found that flying a plane at an altitude under 1000 feet over a property on which marijuana was suspected to be growing did not violate any expectation of privacy. In Florida v. Riley, (1989)[ix] the court held that aerial surveillance did not invade our privacy.
But recently, the Supreme Court is starting to back away from their previous view. In United States v. Jones, (2012)[x] the court seemed bothered by the persistency of the invasion of privacy of using a GPS tracker on a suspect’s car. There is a significant difference between a single photo taken with 35mm film from a plane as in Ciraolo and the constant use of drones recording everything we do every day for use by police departments. This is the business model of company named Persistent Surveillance Systems[xi]. Anyone who reviews their website will be shocked at what is not only being proposed but is actually being implemented by police departments around the country.
Ironically, technology created privacy. In Griswold v. Connecticut (1965),[xii] the Courts were forced to decide whether using birth control (a new technology) could be regulated by a state. The court said no and created the doctrine of privacy once and for all found in the penumbras of other amendments.
Now technology is the biggest threat to privacy. Technology has allowed for the creation of databases that hold our entire lives. If the Cambridge Analytica scandal shows us anything, it is that a small bit of information gathered online can be linked with public record databases and voting records to create a predictable outcome in an election. COVID-19 is going to force us to take a good hard look at the collection of information through surveillance and biometric data gathering. Exigent circumstances are one thing, but will our rights be restored after the pandemic or are we entering a 1984 inspired surveillance state?
[i] “COVID-19, Digital Surveillance and the Threat to Your Rights.” Amnesty International, http://www.amnesty.org/en/latest/news/2020/04/covid-19-surveillance-threat-to-your-rights/.
[ii] Auxier, Brooke. “How Americans See Digital Privacy Issues amid the COVID-19 Outbreak.” Pew Research Center, Pew Research Center, 4 May 2020, http://www.pewresearch.org/fact-tank/2020/05/04/how-americans-see-digital-privacy-issues-amid-the-covid-19-outbreak/.
[iii] “Innovating to Fight COVID-19: Four Ways Drones Are Contributing.” DJI Official, 23 Jan. 2020, enterprise.dji.com/news/detail/fight-covid-19-with-drones#; Blair, Russell. “Connecticut Town Scraps Plan to Use Temperature-Tracking Drones in Fight against Coronavirus.” Courant.com, Hartford Courant, 23 Apr. 2020, http://www.courant.com/coronavirus/hc-news-coronavirus-connecticut-drone-20200423-tiakrmg3erez7fpkpxk6ixkacy-story.html.
[iv] Carpenter v. United States, 585 U.S. ___ (2018).
[v] 18 U.S.C. § 2701 et seq..
[vi] Doffman, Zak. “COVID-19 Phone Location Tracking: Yes, It’s Happening Now-Here’s What You Should Know.” Forbes, Forbes Magazine, 28 Mar. 2020, http://www.forbes.com/sites/zakdoffman/2020/03/27/covid-19-phone-location-tracking-its-moving-fast-this-is-whats-happening-now/#5eb4c4cb11d3.
[vii] Rayome, Alison DeNisco. “’Pandemic Drone’ Test Flights Are Monitoring Social Distancing.” CNET, CNET, 22 Apr. 2020, http://www.cnet.com/news/pandemic-drone-test-flights-will-monitor-social-distancing/.
[viii] California v. Ciralo, 476 U.S. 207 (1986)
[ix] Florida v. Riley, 488 U.S. 445 (1989).
[x] United States v. Jones, 565 U.S. 400 (2012).
[xii] Griswold v. Connecticut, 381 U.S. 479 (1965).
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