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LiliaJimenezFirstPaper 3 - 19 May 2021 - Main.LiliaJimenez
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Introduction | |
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< | 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. | >
> | When COVID-19 became a concern, many thought it would not last more than a few weeks. The pandemic has now surpassed 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, vaccines and covid-related apps often require sensitive information and signed agreements, which have become routine and are encouraged, are signed blithely. While the current administration’s efforts to gain herd immunity as quickly as possible 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, which have taken hold quickly as countries plan to open their borders, have come at a cost: people’s data and privacy. | | | | |
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< | 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. | | | | |
<
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So long as we are in the "may have an effect" syntax, we're not actually informing the reader.
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> | The Real Winners of the Pandemic
The Perfect Storm for Mass Data Collection
While the White house spokeswoman Jen Psaki when asked about vaccine passports at a press conference April, 6, 2021 said “There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential,” this hasn’t stopped third parties from obtaining such data. 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. Third parties have already weaponized behavioral data to their benefit but the pandemic has given them and others more ways to do so. | | | | |
<
< | 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, Pharmacies, local healthcare clinics, drug stores and state run vaccination sites across the nation have stepped in to help the federal government control the mess that was testing and vaccine roll outs. While contact tracing apps were not as effective in curbing the spread of the virus as people hoped, apps like Dr. B, a company that at the height of scarcity and restrictions for the vaccine connected vaccine providers with extra doses to people who were willing to get the vaccine in a moment’s notice, were successful. https://www.nytimes.com/2021/03/09/health/covid-vaccine-leftover-doses-dr-b.html?action=click&module=Top%20Stories&pgtype=Homepage (https://www.google.com/covid19/exposurenotifications/) The app also required a host of personal information to sign up. Most required information on Covid-19 related health forms obtained by pharmacies, apps and tech companies is basic information. One of the main issues is that people are giving away sensitive information voluntarily and don’t really understand what it is being used for or who it is shared with. Is that really informed 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. | | | | |
<
< | 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] | | | | |
<
< |
Here the illustrative examples show that if people are willing to provide information, others are always willing to receive it. The drugstore chains accruing large voluntary contributions of personal information in return for vaccine doses are not mentioned, but they are another good example. It is, however, important to distinguish between what parties request and what people are required to provide.
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> | The Profit Chasing Data Broker
It’s not hard to tell who the real winners of the pandemic are; Amazon’s pandemic profits topped their previous 3 years of earnings reporting first-quarter earnings of $8.11 billion. While brick-and-mortar stores closed, Amazon has now posted four consecutive record quarterly profits, attracted more than 200 million Prime loyalty subscribers, and recruited over 500,000 employees to keep up with surging demand. (https://www.reuters.com/technology/amazon-first-quarter-sales-beat-expectations-2021-04-29/) Their success, in their profits and even their employees not forming a union, is built not only on the weak stance on antitrust by the government but also on the data they transfer and the fact that privacy concerns have been pushed aside when it comes to third parties ability to profit off of their mass data collection. Despite recent data breaches and hacks, the United States has failed to implement comprehensive federal data privacy reform and has created a privacy vortex in which data brokers dominate. (Lauren Bass, The Concealed Cost of Convenience: Protecting Personal Data Privacy in the Age of Alexa, 30 Fordham Intell. Prop. Media & Ent. L.J. 261 (2019). Available at: https://ir.lawnet.fordham.edu/iplj/vol30/iss1/6) | | | | |
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< | 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. | >
> | What The Future Holds
Interestingly, while governments and tech companies are still racing to figure out what it takes to create a successful universal digital pass, and companies like Amazon have been under fire for numerous problematic practices such as employee surveillance and potentially breaking laws to derail workers union vote, privacy issues and concerns have gained traction as the pandemic’s end is closer in sight. Part of this recognition is due to the wrong reasons such as anti-vaxxers and anit-maskers following misinformation pushed by former President Trump (https://doi.org/10.1371/journal.pone.0247642) but also by concerned citizens rightfully hesitant to give away their sensitive information. | | | | |
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Why misleading? No one is required to use intrusive software on smartassphone computers they are not required to own, correct?
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> | There is a major divergence among states and even among nations between a “privacy-first” approach which protects citizens’ data at the cost of extremely limited access for public health authorities and researchers, and a “data-first” approach which stores large amounts of data which, while of immeasurable value to epidemiologists and other researchers, may significantly intrude upon citizens’ privacy. (Fahey RA, Hino A. COVID-19, digital privacy, and the social limits on data-focused public health responses. Int J Inf Manage. 2020;55:102181. doi:10.1016/j.ijinfomgt.2020.102181) Some states have introduced bans or restrictions on any form of a state required Covid-19 passport and some states have introduced voluntary apps that act as digital-passes and confidentially transfer information about the status of an individual’s covid results and vaccination status. An important question is: why are tech companies with a data-first approach not a concern? And how can we enhance people access to knowledge capital? | | | | |
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< | 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.
What "requirements [are] being required"? What evidence is there of "likely" mistake?
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.
Who is requiring anything of "event-goers"? What state action is occurring that is subject to constitutional review of what kind?
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.
They are too out of reach to have been shown here, however.
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]
So is that about what might be happening outside the US constitutional context and highly libertarian cultural setting? It would be useful to point out the federalism considerations involved, the at least equally severe problem of libertarian resistance to public health measures with no privacy consequences, etc.
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.
Perhaps an explanation here would be useful, including that Google and Apple each permit only one application for contact tracking per country, and the woefully poor results achieved through their use, leading to pretty much no US relevance of the technology. It would also be useful to point out to the reader that the presence of the contact tracking applications, even if they were widely used, actually adds nothing to the data stores the companies already acquire, given the careful pro-privacy design of both the Google and Apple APIs and the generally-unrestricted forms of data collection in which they actually engage. Surely the facts point to the conclusion that Google and Apple designed tracking APIs that would give the governments the minimal information possible, while leaving their own ordinary overcollection completely uninhibited?
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:
Why aren't these notes just links in the text. In writing for the Web, let's make it easy for readers.
In a rapidly-developing area, journalism may be the only source of factual material, but I think you can do better than the source quality here. There are, after all, facts about technical APIs, the performance of the tracking systems, the political acceptability vel non of "vaccine passport" data attestation (which the federal administration has said will not be used, and which some state governors have issued executive orders against), etc., that you could be letting your readers know about. Linking to primary sources instead of or in addition to secondary press coverage and op-ed pieces is highly desirable.
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
But the UK government spent almost $50 billion on this premise and got nothing for it. Shouldn't you point out the facts that changed after this April 2020 hype?
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.
Aside from some efforts to improve source quality, I think the most important route to improvement is to replace "may effect" and "likely to effect" formulations with actual information about occurrences so far. I think "approaches state action" formulations are less useful to the reader than actual analysis on the basis of cases decided in other contexts, showing what the relevant doctrinal boundaries are.
These steps improve the essay because, now that we ARE a year into the global public health emergency, we can speak from factual experience about the nature of the public health responses of both government and private industry. That the word "Amazon" does not appear in this draft suggests that the real effects on data flows are less discussed here than the speculative reasoning of last summer. What would be best of all for the reader here would be a collection of references to primary sources documenting what has happened, and a balanced view of the effects on data flows of the generally weak government responses to the epidemic, and the real economic winners in the data trades over the past year.
| >
> | This pandemic has made clear that the lack of sufficient privacy policies, evoking the third party doctrine, is no longer an excuse. One example that highlights this is Facebook’s sheer panic and weak response to Apple rolling out stronger privacy protections for their users. As discussed in class, 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 is a legal loophole. A running theme and possible solution to the heightened privacy concerns and blatant profiteering of large tech companies is a more widespread education about technology and privacy concerns. Hopefully more robust knowledge acquired by everyday citizens would encourage individuals to question what limits on power are put in place to effectively govern state action and how can these limits go beyond the pandemic to protect individuals rights to a private life and start to put privacy back into their own hands with simple changes to the way they interact with and use technology. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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LiliaJimenezFirstPaper 2 - 04 Apr 2021 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Covid-19, State Collaboration and Data Mining, Oh My! | | | 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. | |
>
> |
So long as we are in the "may have an effect" syntax, we're not actually informing the reader.
| | | 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] | |
>
> |
Here the illustrative examples show that if people are willing to provide information, others are always willing to receive it. The drugstore chains accruing large voluntary contributions of personal information in return for vaccine doses are not mentioned, but they are another good example. It is, however, important to distinguish between what parties request and what people are required to provide.
| | | 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. | >
> |
Why misleading? No one is required to use intrusive software on smartassphone computers they are not required to own, correct?
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.
What "requirements [are] being required"? What evidence is there of "likely" mistake?
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.
Who is requiring anything of "event-goers"? What state action is occurring that is subject to constitutional review of what kind?
| | | 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. | >
> | The dangers of unchecked state surveillance expanding through the circumstances of the pandemic and being abused are not far out of reach.
They are too out of reach to have been shown here, however.
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]
So is that about what might be happening outside the US constitutional context and highly libertarian cultural setting? It would be useful to point out the federalism considerations involved, the at least equally severe problem of libertarian resistance to public health measures with no privacy consequences, etc.
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.
Perhaps an explanation here would be useful, including that Google and Apple each permit only one application for contact tracking per country, and the woefully poor results achieved through their use, leading to pretty much no US relevance of the technology. It would also be useful to point out to the reader that the presence of the contact tracking applications, even if they were widely used, actually adds nothing to the data stores the companies already acquire, given the careful pro-privacy design of both the Google and Apple APIs and the generally-unrestricted forms of data collection in which they actually engage. Surely the facts point to the conclusion that Google and Apple designed tracking APIs that would give the governments the minimal information possible, while leaving their own ordinary overcollection completely uninhibited?
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: | |
>
> |
Why aren't these notes just links in the text. In writing for the Web, let's make it easy for readers.
In a rapidly-developing area, journalism may be the only source of factual material, but I think you can do better than the source quality here. There are, after all, facts about technical APIs, the performance of the tracking systems, the political acceptability vel non of "vaccine passport" data attestation (which the federal administration has said will not be used, and which some state governors have issued executive orders against), etc., that you could be letting your readers know about. Linking to primary sources instead of or in addition to secondary press coverage and op-ed pieces is highly desirable.
| | | 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 | |
>
> |
But the UK government spent almost $50 billion on this premise and got nothing for it. Shouldn't you point out the facts that changed after this April 2020 hype?
| | | 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. | | | https://www.bbc.com/news/world-asia-55541001. | |
>
> |
Aside from some efforts to improve source quality, I think the most important route to improvement is to replace "may effect" and "likely to effect" formulations with actual information about occurrences so far. I think "approaches state action" formulations are less useful to the reader than actual analysis on the basis of cases decided in other contexts, showing what the relevant doctrinal boundaries are.
These steps improve the essay because, now that we ARE a year into the global public health emergency, we can speak from factual experience about the nature of the public health responses of both government and private industry. That the word "Amazon" does not appear in this draft suggests that the real effects on data flows are less discussed here than the speculative reasoning of last summer. What would be best of all for the reader here would be a collection of references to primary sources documenting what has happened, and a balanced view of the effects on data flows of the generally weak government responses to the epidemic, and the real economic winners in the data trades over the past year.
| | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines: |
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LiliaJimenezFirstPaper 1 - 12 Mar 2021 - Main.LiliaJimenez
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
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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