As countries around the world scramble to fight off the public health nightmare of the COVID-19 pandemic, more are looking to a surprising medicine: surveillance.
Following China, Taiwan, and South Korea’s success in bending the curve of infection, commentators and surveillance vendors are urging governments in the U.S. to replicate their use of invasive surveillance tools, even when it’s unclear whether this technology is actually effective at fighting the coronavirus. Rather than simply accepting tracking with open arms, Americans should be wary of geeks bearing gifts. Today’s startups could do more than squander venture capital dollars—their misguided COVID-19 surveillance measures may cost lives and undermine our democracy.
Widespread surveillance has yet to be implemented across the U.S., but it has become a common pandemic-fighting tool elsewhere. In China, individuals receive a color-coded health rating: green, yellow, or red. While the details of how the system operates are opaque, individuals who are deemed at higher risk are denied access to education, work, or even transit. Get a yellow or a red rating? Sorry, there’s no way to know why, and you certainly can’t appeal. And the details aren’t merely given to health authorities, which would be invasive on its own. Data are also given to police.
In South Korea, quarantines aren’t optional; leaving your home against doctor’s orders is a crime. Enforcing thousands of quarantine orders would be a maddening prospect, but (luckily?) there’s an app for that. The Ministry of the Interior and Safety’s smartphone app tracks users’ GPS location and also ties into a broad network of other monitoring: CCTV, credit card activity, cellphone tower logs, and more. If you test positive for COVID-19, the results will be shared with everyone you’ve spent time with.
In Israel, the government authorized the Shin Bet, the nation’s internal security service, to hack into the phones of civilians who test positive. The Health Ministry is now using data collected on civilians to send text alerts informing them when, according to their digital footprint, they have made contact with someone who tested positive for the virus. For example, the controversial alerts have traced the movements of healthcare providers who already understood their potential exposure.
Though these governments have thrown their weight behind health surveillance, it’s not clear if it actually works. Some countries that flattened the COVID-19 curve have deployed mass surveillance, but it’s been part of a much larger response, including massive testing campaigns, expanded treatment capacity, and countless other public health tools.
And even if some types of surveillance did help abroad, it’s not certain that broad-based cellphone tracking or other invasive measures would be effective in the U.S. For example, it’s unknown how broad-based surveillance impacts voluntary compliance with social distancing and quarantine requirements. As the government seeks greater visibility into the public’s movements, many Americans will seek to evade public monitoring for reasons wholly unrelated to COVID-19. These tools can backfire, driving people into the shadows and chilling the public’s willingness to seek medical treatment. And just as importantly, draconian surveillance tools can foster an adversarial dynamic between the public and health authorities, undermining public support for, and compliance with, social distancing mandates.
While it would be wrong to dismiss data tracking tools out of hand, it would be equally wrong to disregard their potential price. What is proven is that these surveillance systems provide authorities with information on matters unrelated to COVID-19. Whether it’s tracking attendance at protests or houses of worship, COVID-19 surveillance tools possess the power to chill our most fundamental civil rights. None of these concerns seem to matter to the surveillance vendors that see this public health crisis as just another business opportunity.
One firm, Athena Security, claims that its thermal imaging security cameras can detect people with fevers who are potential carriers of the coronavirus in large crowds. Another, ClearviewAI, is in talks with the U.S. government to build a coronavirus tracking partnership, using facial recognition to create a perpetual log of Americans’ public movements. This comes just weeks after the facial recognition firm was heavily criticized for building its product with billions of photos taken from Americans without consent. One project even is trying to use AI-driven cough analysis to create a COVID-19 voiceprint.
The sad truth is that none of these applications or diagnostic measures are supported by peer-reviewed evidence, let alone FDA approval. And with each new use of AI-driven surveillance, we run the risk of promoting the racial and gender bias that has plagued facial recognition for years.
The government is asking other questionable tech firms for help. The Centers for Disease Control and Prevention have requested that Palantir, the controversial data-analysis company that has used data to help ICE with deportations, track the spread of the virus. Now, the very same platform that has targeted undocumented families will be used to track their health as well, all with no safeguards against misuse of the data by ICE.
This points to one of the most fundamental concerns in any new health surveillance tool: Who else gets the data? Even if a tool is shown to be effective, even if it’s deployable at scale, how else might the data be used by government agencies? A recent survey from the firm Oliver Wyman Forum showed that while 55% of Americans would feel comfortable sharing their coronavirus health status with public health agencies, only 27% would be okay with providing the same information to the federal government.
If America is to go down the path of expanding COVID-19 surveillance, at a bare minimum we must have new legal protections that make clear that this information cannot be used for any other purpose. Any data must be automatically destroyed as soon as the crisis ends.
But even the strongest statutes are hardly iron-clad protections. Even if lawmakers agree to limits on COVID-19 surveillance data today, they might roll limits back tomorrow. When past civil rights have been curtailed in times of crisis, whether Lincoln’s suspension of habeas corpus or Congress’s enactment of the USA PATRIOT Act after 9/11, these “temporary measures” long outlived the crises they sought to address. If we respond to the coronavirus with invasive, high-tech surveillance, we risk history repeating itself. It’s a dangerous bargain, especially when our most effective tool against the virus is not some new high-tech tracking system: It’s low-tech soap.
Albert Fox Cahn (@FoxCahn) is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center, a New York-based civil rights and privacy group, and a fellow at the Engelberg Center for Innovation Law & Policy at NYU School of Law.
Alyssa Domino is a legal services volunteer at the Surveillance Technology Oversight Project (S.T.O.P.) at the Urban Justice Center and a graduate of Wesleyan University.