EricaPedersen's Journal

My first entry in this journal will be brief as I am still working to get my work together during this strange and difficult time. I am trying to stay hopeful that we will emerge from this pandemic awakened to the things that matter most in life and, as a society, finally begin working towards the structural changes that have been necessary for a long time (rebuilding our welfare system and obtaining universal healthcare in particular). However, the pessimist in me (perhaps fed by my own illnesses) worries that these events will only reinforce toxic forms of individualism and lead to nihilistic and short-sighted responses. The irony is that, to keep myself going, I need to avoid thinking about the long term as much as possible right now... avoid the crippling spirals. I am trying to find a new balance between helping my family members through their own hardships and adjustments to online technologies (and safety measures), while staying as productive as possible.

The readings that stood out to me this week were those related to the electronic surveillance of counsel. The breadth of the scope of the government's monitoring abilities, particularly under Title III and pursuant to BOP regulations, is extremely concerning. I was also astonished to read about the use of North Carolina's nolle prosequi law to attempt to indefinitely defer prosecution in Klopfer. To hold this threat over the head of an individual who has not been found guilty by a jury (and for a misdemeanor, at that) seems so facially oppressive and tyrannical, not to mention a clear violation of the Sixth Amendment.

I have also been closely watching your radar for articles and researching governments' use of surveillance technologies to respond to the COVID-19 pandemic. I am especially concerned about the Trump Administration's ongoing discussions with Google and Facebook regarding the aggregation of massive datasets on individuals around the country as a means of tracking the spread of the virus. Given that researchers are still identifying new symptoms and incubation dynamics, I simply do not see how such a data analysis effort would in fact respect principles of data minimization. It also seems impossible for a data set which is fundamentally reliant on geolocation information to, in fact, be anonymized (especially now that many of us are sheltering in place at our home addresses). An environment of fear, uncertainty, and the necessity for speed is not conducive to thoughtful and restrained public-private partnerships. I worry that new measures taken during this pandemic will quickly become a new normal, further reducing what is left of our "reasonable expectations of privacy" and open the door to increasingly pervasive surveillance by both our government and tech companies, allegedly for the public good.

Hard as it is to pay attention under these circumstances, I think you have the right objects of attention in mind.

If the US does find a way to resume coherent government, once it has begun actually attempting to perform traditional epidemiological public health—testing, tracing and isolating new cases—data based on population surveillance conducted by the platform companies will become more valuable than it is now. At present, it is performing essentially secondary and tertiary functions, like establishing gross measurements of movement decline to assess the effectiveness of stay-at-home measures.

In that hypothetical phase, when we have overcome governmental dysfunction, mass surveillance intended to discover individual behavior will be justified on exigent public health grounds, and will leave behind new surveillance infrastructure that could become permanent.

But you can also be using the crisis to build more privacy for yourself. Under current conditions, it is easier to turn off the mobile surveillance device and use real computers wired to the wall. Following tech project 2, it will be possible to use the web fully without revealing your location. At a time when habits are being discarded and only certain functional effects matter, you too can be building infrastructure that will survive.

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