Siphoning civil liberties in the name of COVID-19: A research roundup

 
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May 1, 2020

Since the turn of the New Year, governments worldwide — including in the U.S. — have curtailed civil liberties in response to the coronavirus pandemic. The essential American right of free assembly, for example, has been restricted across much of the country.

“Compelling public interest” is the threshold American legal scholars often use when assessing the constitutionality of government actions that infringe on individual liberties. The compelling public interest behind today’s stay-at-home orders? Stemming the spread of the new coronavirus.

“Courts normally require health officials to provide individualized risk assessments to warrant isolation and quarantine, along with procedural protections,” write health law professors Lawrence Gostin and Lindsay Wiley in one of the papers featured in this research roundup, which includes peer-reviewed articles and scholarly commentaries. “Traditional constitutional safeguards, however, appear impractical in the face of large-scale interventions.”

Americans still broadly support statewide shutdowns, according to a national survey of nearly 5,000 adults from the Pew Research Center in April. Researchers at Northeastern University, the Harvard Kennedy School and Rutgers University who surveyed a nationally representative sample of nearly 23,000 American adults likewise found that large percentages of Republicans and Democrats support waiting to reopen the economy.

There are signals that certain civil liberties are in peril. In the midst of the pandemic, legislatures in Kentucky, South Dakota and West Virginia passed laws that will chill speech opposed to fossil fuel infrastructure development, University of Alabama law professor Ronald Krotoszynski wrote this week in The Atlantic.

There haven’t been explicit civil rights infringements at the federal level during the pandemic. But President Donald Trump turned heads last month when he said, falsely, “When somebody’s the president of the United States, the authority is total.” It’s a claim that scholars and politicians across the political spectrum rejected.

In other countries, crackdowns on individual freedom have, in some cases, been overt and severe. Legislation aimed at curbing the coronavirus in the United Kingdom could have adverse consequences for the medical rights of patients with impaired decision-making abilities, according to a new paper in the International Journal of Law and Psychiatry. Meanwhile, lawyers for Indian Prime Minister Narendra Modi pressed the Supreme Court there to order media to publish the government’s official coronavirus information.

The Iranian government has detained journalists who publicly questioned official coronavirus data. Hungarian Prime Minister Viktor Orbán has essentially seized absolute power indefinitely. People there who spread coronavirus information counter to the government line face jail time, according to news reports.

No western government has rebuffed other governments that are targeting journalists, according to according to Joel Simon, executive director of the Committee to Protect Journalists. Some governments have also turned to potentially intrusive technologies to track the spread of the new coronavirus.

“China is making use of drones, facial recognition cameras, and Quick Response code technology to monitor the whereabouts of its citizens,” writes political scientist Olivier Nay in another paper featured below. “South Korea, Singapore, and Israel are extracting Global Positioning System data from mobile phone networks, credit card information, and video images to monitor the outbreak.”

It remains to be seen whether efforts to siphon civil liberties away from people will reverse once the pandemic is under control. In the U.S., the most notable recent example of the government seizing previously unseen authority came after 9/11. The National Security Agency, with help from telecom companies, engaged in warrantless surveillance of Americans in the decade that followed the attacks.

U.S. officials also set the rhetorical stage for anti-democratic regimes to infringe on civil liberties, according to Simon, with phrases like President George W. Bush’s “You’re either with us or against us” in November 2001. In the 2000s, the U.S. itself imprisoned more than a dozen journalists in Iraq, Afghanistan and Guantánamo Bay, according to a 2013 CPJ report.

Contact tracing — monitoring people who’ve come into contact with those diagnosed with COVID-19 — will be a key facet to containing the coronavirus. Apple and Google are developing an opt-in contact tracing system that will work through smartphones.

“There is a risk that this pandemic becomes a slippery slope that encourages more monitoring of the population for other purposes,” says Neil Abernethy, a biomedical informatics professor at the University of Washington. “Researchers and policy-makers alike should work with the public to identify which conditions are acceptable for the use of such information.”

Americans are about evenly divided on whether they think it’s OK for the government to use cellphones to track people who have contracted COVID-19, according to the Pew Research survey. The Northeastern, Harvard and Rutgers researchers found similar results from their survey.

If widespread coronavirus tracking comes to pass, whether that tracking promotes public health while minimally infringing on civil liberties may hinge on a country’s leaders encouraging robust and free public debate — not stifling it.

“We must keep in mind that the cure for bad information is more information,” write law professor Eric Johnson and infectious disease specialist Theodore Bailey in one of the papers here. “That is true in a time of pandemic just as it is in a time of normalcy. At the end of the day, constitutional guarantees of free speech and a free press will have saved lives.”

Governmental Public Health Powers During the COVID-19 Pandemic

Lawrence Gostin and Lindsay Wiley. The Journal of the American Medical Association, April 2020.

Lawrence Gostin is a health law professor at Georgetown University and Lindsay Wiley is the same at American University. They explore legal actions federal and state governments may and may not take to contain public health crises. Social distancing measures that include bans on large public gatherings, for example, are legally permissible. The federal government, on the other hand, has limited ability to order states to lift restrictions on business operations.

“Although the First Amendment protects free speech, religion, and assembly, COVID-19 bans do not single out any group or censure any idea,” the authors write in this JAMA Viewpoint piece. Viewpoint articles in JAMA offer scholarly perspectives on health law and other topics. “The Supreme Court often upholds ‘content-neutral’ restrictions when justified by a compelling public interest.”

Courts also have upheld curfews, as long as they’re not arbitrarily applied or discriminatory. The same standard applies to stay-at-home orders. The authors recommend that elected officials appeal to civic responsibility rather than punitive measures to encourage compliance. Long-term stay-at-home orders, like those many Americans are living under, are untested in the courts, according to the authors.

Sanitary cordons are also untested in modern courts. In the early 1900s, a federal court struck down a geographic quarantine in San Francisco during a bubonic plague outbreak because the cordon almost entirely affected Chinese Americans. The takeaway is that individual freedom doesn’t precede measures that ensure public health — so long as those measures don’t unfairly target specific groups of people.

“Caring for the most vulnerable will be a crucial measure of humanity,” write Gostin and Wiley. “When this national emergency ends, the U.S. must emerge stronger with the values of human rights, social justice, and the rule of law intact.”

 

Can a Virus Undermine Human Rights?

Olivier Nay. Lancet Public Health, April 2020.

Countries outside the U.S. have used mass surveillance technologies to try to stem the spread of the new coronavirus. Olivier Nay, a political scientist at the University of Paris, identifies three risks that could allow governments to use those surveillance tools as the norm — not just during break-in-case-of-emergency situations.

“China is making use of drones, facial recognition cameras, and Quick Response code technology to monitor the whereabouts of its citizens,” Nay writes in this commentary. “South Korea, Singapore, and Israel are extracting Global Positioning System data from mobile phone networks, credit card information, and video images to monitor the outbreak.”

The first risk, according to Nay, is that citizens and legislatures come to accept emergency measures, like mass surveillance, as commonplace. The second risk is related — that governments seize on public fear during national crises to pursue surveillance legislation that would have been politically unpalatable in normal times. The third risk is that citizens actively seek surveillance, preferring to cede their liberties to singular leaders rather than pursuing democratic debate.

“National legislatures should adopt adequate rules to ensure that health surveillance and monitoring policies will be strictly prescribed by law, proportionate to public health necessities, done in a transparent manner, controlled by independent regulation authorities, subject to constant ethical reflection, non-discriminatory, and respectful of fundamental rights,” Nay concludes.

 

Urgent Legal Lessons from a Very Fast Problem

Eric Johnson and Theodore Bailey. Stanford Law Review, forthcoming.

With the new coronavirus spreading from a regional problem in China to a pandemic in a matter of weeks, Eric Johnson and Theodore Bailey describe three legal lessons that civil liberties watchers should know. Johnson is a law professor at the University of Oklahoma. Baily is an infectious disease specialist at the Mayo Clinic in Minnesota.

The first lesson is that freedom of information means that misinformation — even from high-level government officials — can spread as fast as the virus itself. But when free speech and free press are restricted, information that people need to survive may also be suppressed. Paywalls are another factor that can prevent people from accessing the fast-moving research and news. The authors note that several top medical journals, like The New England Journal of Medicine and The Journal of the American Medical Association, have made their coronavirus-related papers free to access.

“We must keep in mind that the cure for bad information is more information,” write Johnson and Bailey. “That is true in a time of pandemic just as it is in a time of normalcy. At the end of the day, constitutional guarantees of free speech and a free press will have saved lives.”

The second lesson is that independent administrative and judicial agencies may need to play a larger role than elected officials in responding to national crises. “It is not plausible to expect politicians or politically controlled agencies to exercise decisive leadership with tough-to-swallow measures such as halting travel, banning public events, and mandating social distancing,” the authors write.

The third lesson is that regulatory and rulemaking systems need to be able to move quickly to safeguard public health. “In the midst of a pandemic,” write Johnson and Bailey, “bureaucratic slowness may be deadly.”

 

Disease Control, Civil Liberties, and Mass Testing — Calibrating Restrictions during the Covid-19 Pandemic

David Studdert and Mark Hall. The New England Journal of Medicine, April 2020.

The authors of this perspective article examine how stay-at-home orders and recommendations in the U.S. have changed during the coronavirus pandemic. David Studdert is at Stanford University and Mark Hall is at Wake Forest University. They’re both health law professors.

“Law and public policy have a long history of deference to intrusive action by public health authorities, especially during deadly infectious disease outbreaks,” write Studdert and Hall. “There are limits, however.”

Quarantines related to disease outbreaks usually target people who’ve been infected or exposed, the authors write. In March, passengers and crew on the Grand Princess cruise ship dealing with a coronavirus outbreak had to quarantine for several days before the ship docked in Oakland, California. Passengers and crew subsequently quarantined for another two weeks on land.

Stay-at-home orders today are less intrusive than the cruise ship quarantine. People by and large can still exercise outside and run essential errands. But stay-at-home orders also more sweeping. Most Americans are affected whether or not they’ve been exposed to the virus, Studdert and Hall explain.

The authors also write that stay-at-home orders are “unlikely to be a one-shot deal,” a scenario playing out in real-time as states like Georgia and Florida re-open while states like Massachusetts and New York largely remain closed. Confirmed COVID-19 cases will rise and fall and will require ongoing tweaks to rules about gathering in public, according to the authors. That’s different from the usual paradigm of a single shutdown, then it’s safe for people to go about their regular lives again. Population-level testing would allow large swaths of the country to safely reopen, according to Studdert and Hall.

“In ordinary times, a comprehensive program of testing, certification, and retesting would be beyond the pale,” they write. “Today, it seems like a fair price to pay for safely and fairly resuming a semblance of normal life.”

 

Warning! You’re Entering a Sick Zone!

Scott Mitchell. Online Information Review, October 2019.

“Imagine waking up in the morning and, along with the day’s weather and breaking news, you get an update about your risk of contracting a contagious disease,” writes Scott Mitchell, an associate professor at Carleton University in Canada who studies geographic tracking.

As the coronavirus continues to upend economic and civic life, that imaginary scenario could become reality for many Americans. In this paper, Mitchell explores the personal privacy implications of two applications, HealthMap and Sickweather, that offer two different visions for online disease tracking.

Researchers at Boston Children’s Hospital created the HealthMap online tool to coalesce disparate information from social media, online news and other websites to offer real-time data on infectious disease outbreaks for governments and travelers. The tool explicitly doesn’t sell data to third parties.

“HealthMap made headlines in 2014 for detecting references to Ebola infections from local newspapers in Guinea, more than a week before government authorities in the country informed the World Health Organization about the outbreak,” Mitchell writes.

Sickweather, by contrast, is a commercial application with free and paid versions. Paid users have access to the geotagged data that powers the application, according to Mitchell. Users can self-report symptoms, and their location is shared with other users. Users can also connect the app to their Facebook and Twitter accounts so that Sickweather can track when their friends post about being sick.

“In other words, it is not possible to opt out of the network: If one of your Facebook friends or Twitter followers uses Sickweather and you post a status update about being sick, you have automatically participated in this disease tracking assemblage,” Mitchell writes.

User experience reflects the respective non-commercial and commercial natures of HealthMap and Sickweather. Mitchell documents that notifications on Sickweather mimic social media alerts: “Attention! You’re near a fever, sore throat and flu report.” Meanwhile, the look and feel of HealthMap is “more subdued and clinical,” he writes.

Notably, privacy laws don’t apply to commercial applications. Mitchell writes that, “these apps, from step counters and calorie trackers to disease surveillance apps and websites, fall outside of regulatory protections and frameworks such as the Health Insurance Portability and Accountability Act in the U.S., which provides national standards for electronic health care transactions.”

Check out our other coronavirus-related resources, including tips on covering biomedical research preprints and a roundup of research that looks at how infectious disease outbreaks affect people’s mental health. Also, don’t miss our feature on rural broadband in the time of coronavirus.

 

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