By Gaurav Laroia
Months into the global pandemic, governments, think tanks, and companies have begun releasing comprehensive plans to reopen the economy while the world will have to wait a year or longer for the universal deployment of an effective vaccine.
A big part of many of these plans are digital tools, apps, and public-health surveillance project that could be used to contain the spread of COVID-19. But even if they’re effective, these tools must be subject to rigorous oversight and laws preventing their abuse. Corporate America is already contemplating mandatory worker testing and tracking. Digital COVID passports that could grant those with immunity or an all-clear from a COVID test the right to enter stores, malls, hotels, and other spaces may well be on the way.
We must be ready to watch the watchers and guard against civil rights violations.
Many governments and pundits are turning to tech companies that are promising digital contact tracing applications and services to augment the capacity of manual contact tracers, as they work to identify transmission chains and isolate people exposed to the virus. Yet civil society groups are already highlighting the serious privacy implications of such tools, underscoring the need for robust privacy protections.
The potential for law enforcement and corporate actors alike to abuse these tracking systems is just too great to ignore. For their part, most democratic governments have largely recognized that the principle of voluntary adoption of this technology—rather than attempts at state coercion — is more likely to encourage use of these apps.
But these applications are not useful unless significant percentages of cellphone users use them. An Oxford University study suggests that for a similar app to successfully suppress the epidemic in the United Kingdom, 80 percent of British cellphone users would have to use it, which equates to 56 percent of the overall UK population. If the numbers for a digital contact tracing program to succeed stateside were similar, that would mean activating more than 100 million users.
The level of adoption will dictate just how well these technologies prevent the spread of the virus, but no matter how widespread such voluntary adoption may be there is still potential for coercion, abuse, and targeting of specific users and communities without their consent. Some companies and universities are already planning to develop their own contact tracking systems and requiring their employees or students to participate. The consulting firm PricewaterhouseCoopers is advising companies on how to create these systems, and other smaller tech firms are designing Bluetooth beacons to facilitate the tracking of workers without smartphones.
An unaccountable regime of COVID surveillance could represent a great near-term threat to civil rights and privacy. Already marginalized communities suffering most from this crisis are the most exposed to the capricious whims of corporate leaders eager to restart supply chains and keep the manufacturing and service sector operating.
Essential workers are subject to serious health risks while doing their jobs during a pandemic, and employers mandating use of these technologies without public oversight creates another risk to worker rights. This paints a particularly tragic picture for the Black community which has been disproportionately affected by the pandemic in terms of sickness, death, and unemployment.
Black and Latinx people are more likely to work as cashiers in grocery stores, in nursing homes, or in other service-industry jobs that make infection far more likely. Many such workers are already subject to pervasive and punitive workplace surveillance regimes. But now, there may be real public-health equities at play. When these workers go to work they have to do so in close proximity to others. Employers must protect them and digital tracking tools may well be part of saving lives. But that balance ought to be struck by public-health officials and worker-safety authorities in consultation with affected employees.
This system of private-health surveillance may not just affect workers. Grocery store, retail, and restaurant owners eager to deploy this kind of technology to regain the confidence of shoppers may well see the logic in incentivizing widespread public deployment as well.
Those same stores could offer a financial incentive to customers who can prove they have a contact-tracing app installed on their phone, or they could integrate it into already existing customer loyalty apps, or even . Coordinated efforts from businesses to mitigate losses due to sick workers or the threat of repeated government shutdowns could make incentivizing or demanding COVID-passports worth the investment to them. We may well find ourselves in a situation where a digitally checkpointed mall, Whole Foods, or Walmart feels like an oasis — the safest place in the world outside our homes.
Unaccountable deployment of these systems threaten to create further divides between workers and consumers, the tracked and untracked, or perilous division between those who can afford repeated testing and those who can’t.
So far, few officials have weighed these tradeoffs. As of yet, the only federal legal guidance on these questions has come from the Equal Employment Opportunity Commission, which has ruled that employers can legally institute mandatory temperature checks and other medical exams as conditions of continued employment.
Lawmakers have to do more. They must provide protections for the unauthorized use of this information and not allow access to places of public accommodations – a core civil right – to be determined by a mere app. We must seriously consider what it would mean for a free society should businesses find it makes financial sense to invest in their own health-surveillance systems or deny people access to corner markets or grocery stores if they aren’t carrying the right pass on their person.
We do not have to be resigned to the deployment of a permanent state surveillance apparatus or the capriciousness of the private sector. If our post-9/11 experience is a guide, then we know that unaccountable surveillance infrastructure implemented during a crisis is wildly difficult to dismantle.
We must not construct a recovery that casts a needless decades-long shadow over our society, entrenches the power of large corporations, and further exacerbates class and racial divides. Governments must proactively decide the permissible uses and limits of this technology and the data it collects, and they must demand that these surveillance systems, private or otherwise, be dismantled at the end of the crisis.
Gaurav Laroia is the Senior Policy Counsel at consumer Group Free Press, working alongside the policy team on topics ranging from internet-freedom issues like Net Neutrality and media ownership to consumer privacy and government surveillance.