COVID-19 Patients’ Right to Privacy Against Quarantine Surveillance

By Adam Schwartz

Governments around the world are using surveillance technologies to monitor whether COVID-19 patients are complying with instructions to quarantine at home. These include GPS ankle shackles, phone apps that track location, and phone apps that require patients to periodically take quarantine selfies and send them to government monitors.

All of these surveillance technologies burden fundamental rights. And they can harm public health, by discouraging people from getting tested. No patient should be compelled to submit to such surveillance technologies merely because they tested positive for COVID-19, or are otherwise believed to be at elevated risk of infection.

The varieties of quarantine surveillance

Judges in West Virginia and Kentucky have ordered people to wear GPS ankle shackles (often called electronic monitoring), after they tested positive and then allegedly broke stay-at-home orders. Hawaii considered ordering all people arriving from out-of-state to wear GPS ankle shackles, to ensure compliance with that state’s mandatory 14-day quarantine upon arrival. That plan was reportedly shelved when the state’s attorney general raised concerns.

The Florida governor indicated that his state is developing an app to monitor whether out-of-state visitors comply with that state’s 14-day quarantine upon arrival. Also, the infamous face surveillance vendor Clearview AI was reportedly in talks with state agencies to use its technology to track COVID-19 patients. Using face recognition to enforce quarantine might mean putting large swaths of public areas under video surveillance because someone walking by might be identified as a COVID-19 patient.

Governments in other countries are using additional technologies. For example, South Korea requires quarantined people to download an app that uses GPS to track their location and alert the government if they leave home. Poland requires quarantined people to download an app, and use it to comply with recurring prompts to take a selfie with a time-and-place stamp, and then send the photo to the government. Israel uses drones to peer through the windows of quarantined people’s homes.

In theory, governments might attempt to monitor patient quarantines with other surveillance technologies. These include cell site simulators directed at a patient’s phone, automated license plate readers directed at a patient’s car, GPS devices attached to a patient’s car, or record demands for location data sent to a patient’s communication service provider.

The harms of quarantine surveillance

Electronic surveillance of COVID-19 patients may undermine public health. In prior outbreaks, people who trusted public health authorities were more likely to comply with containment efforts. A punitive approach to containment can break that trust. For example, people may avoid testing if they fear the consequences of a test result showing they are infectious. Already, fewer than half of the people in the United States trust the government to take care of their health, according to a recent study.

Moreover, electronic surveillance to ensure that COVID-19 patients comply with home quarantine would greatly burden their fundamental rights. For example:

• Compulsion to download a surveillance app undermines the right of individuals to autonomously control their smartphones, including how these devices process their personal information. Government should not be able to turn our most intimate tools into our parole officers. Ordinarily, when one person does this to another, we call it stalkerware. Also, the apps that governments force people to install may introduce new security vulnerabilities that make it easier for adversaries to hack their phones.
• Forcing patients to send selfies to the government is a form of compelled speech. Also, many selfies will reveal sensitive information from inside the home, such as the patient’s grooming when in private, the presence of other people, and personal, expressive effects such as political campaign posters. Captured images of books would intrude on the privacy of our home libraries, which has received special solicitude from the Supreme Court.
• GPS ankle shackles are uncomfortable, can trigger false alarms, and often must be paid for by the detainee.
• Face surveillance is so intrusive that the government should not use it at all, including to address COVID-19.

Further, electronic surveillance to monitor home quarantine carries the inherent risk of discriminatory application against people of color and other vulnerable groups. There are racial disparities in the use of GPS ankle shackles in the criminal justice system, and racial disparities have already emerged in how police are enforcing social distancing rules. All too often, new surveillance technologies are deployed in a discriminatory manner.

Thus, for reasons of both efficacy and human rights, COVID-19 patients and others should not be subjected to any kind of surveillance technology to monitor their home quarantine, based solely on a positive test result or suspicion they are at elevated infection risk. Evidence that a person may be infected simply does not tend to show that they will violate a stay-home order. Most people will comply with public health instructions because they want to keep their families and communities safe.

Constitutional limits on quarantine surveillance

The U.S. Constitution limits when the government may use surveillance technology to monitor whether a COVID-19 patient is complying with a stay-home quarantine order.

Under the Supreme Court’s watershed Carpenter decision in 2018, the government conducts a “search” that triggers Fourth Amendment scrutiny when it uses technology to automatically create a “detailed chronicle of a person’s physical presence.” Lower courts have extended Carpenter beyond the particular surveillance technology at issue in that case (historical cell site location information or CSLI) to additional technologies, including real-time CSLI, and pole cameras aimed at a suspect’s property.

Here, weeks of automated location tracking of a quarantined patient should likewise be considered a search. Ordinarily, the government needs a warrant to conduct a search, based on a judge’s finding of probable cause of crime and particularity about who and what will be searched. In this context, a judge must find probable cause that a particular person will break quarantine. Perhaps that could be shown by evidence that a specific patient already broke quarantine in the past. It could not be shown just by a patient’s current infectiousness.

Some have suggested that quarantine surveillance falls within the “special needs” doctrine. This is an exception from the Fourth Amendment’s ordinary warrant requirement, if the government has a purpose “beyond the normal need for law enforcement” and the burdened privacy interests are “minimal.” EFF has long resisted the use of this doctrine as an excuse to engage in highly intrusive surveillance without a warrant, including NSA mass internet surveillance and DNA extraction from arrested people. The doctrine should not apply here, when police strap a GPS shackle to a patient’s ankle, or force a patient to download a tracking app, and threaten to arrest the patient if this surveillance technology shows they stepped foot outside their home. Even if government could show a special need, the doctrine still requires a balancing of the benefits and costs of requiring a warrant to conduct the type of search at issue. Here, quarantine surveillance is highly intrusive, and the government should readily be able to seek prompt judicial review of any alleged need for quarantine surveillance.

The U.S. Constitution also requires procedural due process, meaning notice and an opportunity to be heard when the government deprives a person of their liberty. Here, patients must have a timely and fair opportunity to challenge the use of surveillance technology to monitor their home quarantine.

Conclusion

Automated location tracking is a grave intrusion on personal liberty, including by means of a GPS ankle shackle or compelled download of a surveillance app. This surveillance is not justified merely because a person has been ordered to quarantine at home after they tested positive for COVID-19 or are deemed to have an elevated infection risk.

One need not speculate regarding what kinds of surveillance power governments will demand next. In the name of containing COVID-19, the governments of Russia and China already have required the general population (not just infected patients) to download location-tracking apps onto their phones. Then these governments use these apps to monitor and limit the movements of the general population. History shows that when crises abate, governments hold onto the powers they seize to address the crises.

Source: EFF.org

Adam Schwartz joined EFF as a Senior Staff Attorney in 2015. He advocates before courts and legislatures against surveillance and censorship. He has represented travelers subjected to warrantless smartphone searches by border officers, dissidents seeking to speak in government social media, and customers of phone companies that unlawfully sold location data. He has filed amicus briefs addressing the right to record on-duty police, perpetual location-tracking of court-involved people, face surveillance by corporations of consumers, and overbroad laws against so-called “cyber stalking.” Through FOIA enforcement litigation, he helped expose new information about AT&T’s “Hemisphere” phone snooping program. He has worked to pass bills to to protect consumer data privacy, and to stop high-tech surveillance of immigrants.

Image: Pixabay

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