Contact Tracing Versus Civil Liberties

During a pandemic, how can policymakers balance privacy protections with public health?

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Contact-tracing apps pose major concerns for liberties and privacy. Even though such tools may be necessary to track the spread of the coronavirus, the fear that Big Tech companies will misuse individuals’ data is especially pronounced given past ethical breaches and the current lack of transparency in how our data is being used.

Indeed, contact tracing highlights the trade-off between protecting civil liberties and securing public health. This topic was addressed at a virtual event organized by the Aspen Institute last week. Psychologist Daniel Kahneman, author of the 2011 book Thinking, Fast and Slow, focused on the role of data in decision-making, alongside former Amazon chief scientist Andreas Weigend. On whether tech companies will refrain from using data to violate individual privacy rights through contact-tracing apps, Kahneman said, “We need more guarantees. The issue is how they use controls.”

Congress is working on the Public Health Emergency Privacy Act, which would put protections in place that pertain to “the collection, use and disclosure of emergency health data used to combat the spread of the coronavirus.” In particular, the act would protect the geolocation, physical, and behavioral data of individuals. Sens. Richard Blumenthal (D-CT) and Mark Warner (D-VA) and Reps. Anna Eshoo (D-CA), Jan Schakowsky (D-IL), and Suzan DelBene (D-WA) introduced the bill. However, considering that Congress recently reauthorized the USA Freedom Act, the Public Health Emergency Privacy Act under consideration is unlikely to pass.

Contact tracing highlights the trade-off between protecting civil liberties and securing public health.

The Future of Privacy Forum, a Washington, D.C.–based think tank, said the bill was necessary to build public trust, especially as contact tracing becomes an urgent priority for public-health authorities. Americans care deeply about their privacy, and a full 70 percent said “their personal information was less secure than it was five years earlier,” according to a 2019 Pew Research Center report.

A recent blog post on the Electronic Frontier Foundation’s website, written by Bennett Cyphers and Gennie Gebhart, argued that decentralized tracking technology would be less likely to lead to civil-liberties crackdowns than models that funnel information to a central authority. But EFF is skeptical of all such apps: “It is unclear how much they will help; at best, they will supplement tried-and-tested disease-fighting techniques like widespread testing and manual contact tracing. We should not pin our hopes on a techno-solution.”

Google and Apple have been developing a contact-tracing app that uses artificial-intelligence technology to make contact tracing more efficient. Apple states on its website that the goal of the app is to “enable the use of Bluetooth technology to help governments and health agencies reduce the spread of the virus, with user privacy and security central to the design.” In practice, however, there is great potential for the contact-tracing app to lead to privacy violations. Apple and Google’s app is compatible with both iOS and Android systems. It uses the encryption algorithm AES, which works by using hardware already existing on mobile devices. Their jointly designed app is set to be released by the end of this month. So far, Alabama, North Dakota, and South Carolina have committed to using Apple and Google’s contact-tracing app.

Data can guide decision-making, but as Kahneman argued, data can also lead to false choices or obscure inevitably emotional reactions, even as data collection seems to offer neutral, rational options. “There is no such thing as purely data-driven decision-making because emotions and values are both data, rather than decision,” he said. Exponential data, like the number of COVID-19 cases and deaths, are particularly difficult to understand for the public because of the scale and speed at which the virus spreads. It means that so long as there is any spread at all of the coronavirus, exponential growth of the disease is likely.

Being data-driven has its consequences. “I don’t want to be data-driven. I want to drive data,” said Weigend. Of course, we should take this with a grain of salt since Amazon has an extensive history of exploiting our data. Amazon’s history of exploiting our data goes beyond marketing. The company exploits things like interactions with Alexa, Amazon’s signature device, to gather as much information as possible about us to profiteer and gain a monopoly. At the Aspen panel, Weigend had little to say on the issue of civil liberties post–COVID-19.

When the COVID-19 crisis is over, the need for contact tracing will diminish. So the challenge going forward is to ensure that civil liberties are not undermined now in a way that outlasts the pandemic.

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