Civil Libertarians Forewarn of Breathtaking Surveillance Expansion to Combat COVID-19

Posted on June 1, 2020

A new article by The Washington Post notes a mounting fear among civil liberties defenders that the US government could take steps to establish or expand surveillance programs as a means of addressing the COVID-19 pandemic. Although neither members of Congress nor the president have directly signaled their intent to monitor Americans as part of a public health initiative, the fact that developed democratic nations, including South Korea and Israel, have taken such steps, and that countries like the UK are contemplating following suit, has prompted many civil libertarians to prepare to push back.

If the US government elected to assume greater surveillance powers at this juncture, it would certainly not be the first time in relatively recent memory that it has done so in response to a national security crisis. Lest we forget, the 9/11 attacks led to the birth of the far-reaching Patriot Act and multiple expansions of the Foreign Intelligence Surveillance Act which we are still, to this day, only just beginning to rein in (as CCDBR recently pointed out). These examples of post-9/11 legislation are particularly illustrative examples of the ease with which invasive emergency powers are granted, and the difficulty with which they are curtailed.

From early indications of what public health-minded tracking tools might look like, it seems more likely that any program the federal government initiates will take private sector big data tools as its foundation, rather than create a spying apparatus whole-cloth. Reports are already suggesting that the US government has sought help from private companies on how to use anonymized smartphone location data to derive more public health metrics. While anonymizing data might seem sufficient to preclude its repurposing for surveillance in theory, in practice the data can be de-anonymized simply by correlating enough distinct behavior contained in associated data.

It is enough, for instance, for Google to know which location data points are associated with which device (whether determined by IP address or IMEI number) and which Google accounts–or a myriad of other records they would have as a necessary consequence of the data collection itself–to reasonably infer the identity of that person. The government need do nothing more than issue a National Security Letter, a records request that is not required to demonstrate probable cause before a judge which compels the surrender of a company’s data, or similar law enforcement request to obtain this data and identify individuals on its own.

There is enough palpable fear and uncertainty among Americans, as they confront the menace of an unprecedented public health emergency, that an expansion of government surveillance authority, especially when laundered by the supposed impartiality of private sector involvement, can readily take hold with little resistance if civil liberties defenders do not put up principled and vocal resistance. The risk of this is all the greater considering that a majority of Americans approve of how President Trump is addressing the spread of COVID-19 in the US. Under such circumstances, vigilant, unwavering defense of civil liberties is more essential than ever.

You can read the full piece from The Washington Post here.