AN ATTACK ON OUR PRIVACY RIGHTS, OR A NECESSARY EVIL TO WIN THE WAR ON COVID-19?
Based on the cautiously encouraging recent state-by-state daily reports, the apex of the COVID-19 pandemic and rate of infection is at, near, or just past the apex and the curve has begun to flatten.
Governors and the White House, in tandem with public health officials, are now beginning the hard work of planning for the day over the next 30-60 when the economy and our way of life will reopen, while continuing to be vigilant against a rapid return of the pandemic in the Fall.
But the life or death balancing act that will accompany these crucial decisions as to the when and how of re-animating American society, will unfortunately also likely be accompanied by a further incursion on civil liberties and constitutionally-protected rights to privacy.
Recent reports suggest that U.S. health officials, aided by U.S. technology giants Amazon and Google, are considering issuing national “antibody” identification cards, along with possibly mandating the use of “contact tracing” apps for smartphones to accurately map who an infected person may have come in contact with. But separately or combined, both contemplated new policies may stretch the limits of what the U.S. Supreme Court would find acceptable under the U.S. Constitution and the patchwork of federal and state medical records privacy laws, like the HIPPA Privacy Rule.
The Centers for Disease Control recently announced that it will begin the large-scale use of COVID-19 antibody tests on the population to determine what percentage have been infected, with symptoms or without. From there, the White House Coronavirus Task Force, led by Dr. Anthony S. Fauci, is said to be considering using what it refers to as “immunity” ID cards to those who have the antibodies in their systems, and are thus, the presumption goes, safe to return to the workforce and leave lockdowns.
By one account, more than 70 private companies have lined up to sell purportedly rapid “antibody” tests to federal, state, and local officials. Other countries wracked with the virus, including Italy, are also considering requiring similar “proof” of immunity before a person is allowed to rejoin the workforce.
But if a forced “immunity” ID card scares you and raises the specter of you being forced to reveal your more private medical information as a condition of returning to work, the use of your smartphone to track your every move and report to the government with whom you have had social or other contact, should also send shudders down the spines of civil libertarians and supporters of the 4th Amendment everywhere.
Taking a page out of Big Brother and zombie apocalypse movies and television programming, Google and Amazon, usually bitter arch enemies in the business world, have joined forces to develop a “contact tracing” application for both Android and IOS, that will report every smartphone that yours has come in contact with, under the assumption that if you become “infected,” government health officials can download the data off your app, and determine who you may have had some contact – socially-distant or otherwise—during some defined time period.
But a government-compelled use of both or either program will likely be subject to heightened U.S. Supreme Court scrutiny and may be found to run afoul of some recent court precedent concerning the right to privacy.
In 2018, for example, Chief Justice Roberts writing for the majority, ruled in the landmark privacy case of Carpenter v. United States, that under the 4th Amendment, cell-tower “pings” and information about a person’s location using such information is a privacy interest that a government cannot intrude upon without a proper search warrant. However, in the opinion Justice Roberts left open the possibility that the type of technology used by Google and Amazon’s “contact tracing” application combined with a national security-type policy consideration may be found to not violate a person’s right to privacy.
A government mandated “immunity” card poses other privacy and constitutional concerns.
Under HIPAA and the 14th Amendment’s “zone of privacy,” US citizens enjoy a right to have their most intimate personal medical information protected from government intrusion and disclosure to others. Applying a balancing test, courts evaluate the right to medical information privacy against competing interests of the government (such as to prevent nationwide infection or other public emergency).
The question that will no doubt become the subject of a court-challenge in the near future will be: “Does a government-mandated requirement that every American test for COVID-19 immunity represent an improper balancing of individual privacy rights against government interests of protecting the nation as a whole?”
Unfortunately, court challenges and final U.S. Supreme Court pronouncements lag many months and even years behind the U.S. Government’s implementation of these surveillance programs.
In the meantime, we should be prepared to both have the government further track our every move with the help of our smartphones, and to divulge to public health officials whether we carry certain antibodies, as the price to pay in the short term for the government reopening the economy and our way of life.
About the contributor:
Michael is a renowned national trial attorney and strategist, having successfully tried over 40 civil and federal criminal cases in his career, including in New York, Los Angeles, Chicago, Las Vegas and Miami. The founding partner of a boutique litigation firm located in New York, Michael and his team represent plaintiffs and defendants across the country in high-profile matters, including those focused in the areas of financial services, hospitality and retail, sports and sports gaming, employment including #metoo cases, construction and real estate, and general business disputes. In addition, Michael draws on his being the most recent global head of litigation and employment matters for a publicly-traded Wall Street diversified financial services firm, to advise business clients as their outside general counsel. While in-house, Michael built and led a team of trial lawyers who tried 21 cases in a span of just 4 years, a feat very few lawyers can lay claim to. You can follow Michael on LinkedIn here.