Column: Catching Air
As our society gradually unwinds the Covid-19 shutdowns and people reenter the public workforce, we’re seeing new government efforts to “protect” us whether we like it or not. This increasingly involves mandatory health screenings and various forms of technology-assisted “contact tracing,” including new smartphone apps to identify people who are sick or have associated with a sick person in order to test and possibly quarantine them.
Contact tracing is not new but it has traditionally been done the old-fashioned way, having someone interview those who are sick or who have been in contact with a sick person. With Covid-19, this is a huge undertaking, likely to require more than 100,000 government workers according to a May 12, 2020, article in Forbes magazine.
Hence, the big push now is to use new technologies, including tracking methods ranging all the way from mandatory self-reporting to outright surveillance. This raises significant privacy concerns over what information should be gathered by health officials and what right the government has to force compliance.
Mandatory Smartphone App
My own local county government in California is requiring use of a mandatory smartphone app (or its equivalent) for people to work outside their home, forcing each person to “self-report” daily his or her general location by zip code and whether he or she has symptoms or has been in contact with anyone
who is sick.
If the app decides that person who is self-reporting is sufficiently healthy, that person is awarded a “wellness badge,” allowing him (or her) to go to work.
As I write, we are being assured by county government officials that the app does not directly trace our location or social contacts, at least for now, but the goal is to monitor our activities and aid the county’s efforts to locate and contain potential carriers of the virus.
We are told there can be criminal penalties for noncompliance.
It doesn’t stop there
More sophisticated contact tracing apps are being developed now using GPS systems and Bluetooth radio technology to automatically record when another person’s phone with a similar app is detected nearby.
If anyone shows symptoms or tests positive for Covid-19, an alert is sent to all those who were in close proximity over the preceding week or two (and sent to government officials) along with “advice” on what to do next.
Unfortunately, for GPS contract tracing to really work, you need a large percentage of all smartphone owners to use it. This creates a huge incentive for governments to make the app mandatory, which of course leads to a serious invasion of privacy akin to a form of government surveillance.
Instruments of Surveillence
Privacy advocates, including the American Civil Liberties Union (ACLU), are concerned that governments will use the Covid-19 pandemic as an excuse for new surveillance powers.
Even if an app is described as “voluntary,” the ACLU does not want businesses and public agencies to make it a condition of access to jobs, public transit, grocery stores or other services. Even some of the more privacy-minded tools, such as those created by Apple and Google, could become instruments of surveillance or oppression if not properly safeguarded.
“The risks of getting it wrong are enormous” according to Neema Singh Guliani, a senior legislative counsel with the ACLU.
We have already seen that the government’s response to Covid-19 has been heavy-handed, if not downright illegal in many cases. It has been disastrous to our economy and harmful to public health in numerous unintended ways.
Local governments have used it as an excuse for unprecedented overreach and violations of our civil liberties. Now that we’re finally getting back to normal, why should we believe that mandatory apps and “contact tracing” will be any more respectful of our rights?
Forbes magazine noted the example of one county health official in southern California who casually said that a child could be taken from his home and placed into quarantine if his family didn’t have more than one bathroom.
What could possibly go wrong?
Here are just a few of the possibilities…
Coersion. Use of a government app or other technology-assisted contact tracing could become coercive, perhaps as a requirement for employment or public transportation. Some government agencies and employers are already deciding that people need to comply in order to be allowed to interact “safely” with others at work.
Travel. What if this is expanded to make it a condition for getting on an airplane?
Housing. What if it is made a condition for certain kinds of housing, like apartment buildings, condominiums or homeowners associations where people live in close proximity?
Health and Welfare. What if it is required for health insurance coverage? What if government officials decided to make it a condition for access to public benefits, immigration rights, food stamps, housing support and the like?
Health privacy. When did we decide that health privacy is no longer important? Remember HIPAA?
Information stealing. Even if we trust the government to respect our privacy, there are a variety of private businesses and individuals who could try to force people to use a health reporting or contact tracing app or might use it to steal our personal information.
Access to basic needs. Employers, landlords, or even private business owners might require the app as a condition of employment, tenancy, or access to basic necessities such as grocery stores, pharmacies or other critical services.
Hacking. We can’t know for sure that any information gleaned from these tools would be used solely by public health agencies or only during the pandemic. What if our private information “leaks out” or is otherwise accessed by private companies for commercial purposes or by domestic or foreign “hackers”?
We’ve all heard about major security breaches and hacking of personal information from some of the world’s largest and supposedly most “secure” companies.
Just last year, Capital One Bank said a hacker gained access to more than 100 million of its customers’ personal information, compromising people’s Social Security numbers, bank account numbers, addresses, credit scores and credit limits.
Yahoo’s data breach in 2013 compromised 3 billion people and the company revealed in 2017 that every single customer account had been breached.
Nor can we assume that our government will safeguard our privacy. In 2015, for example, the US Office of Personnel Management admitted that a hack of its system affected every person that was given a government background check over a 15-year period, exposing 21.5 million people.
More government overreach. And then there is the possibility of downright government overreach. We have seen now with the Covid-19 scare that a lot of our government officials are all too willing to ignored our Constitutional rights.
What are other countries doing?
How about other countries? Singapore already has a mandatory contact tracing app called “Safe Entry,” requiring those going to workplaces, schools, stores, hotels and health care facilities to check-in with either a national form of ID or by scanning a QR code on their smartphone. Businesses risk penalties for failing to check-in visitors or customers. There are even moves to extend the check-in process to taxis and other public transit systems.
Australia’s COVIDSafe tracing app, hosted by Amazon Web Services, has prompted a host of privacy and data protection concerns, including risk of cyberattack on its central data repository and worries that the data might be accessed by U.S. authorities since Amazon is a U.S. corporation. The Australian government is working on legislation to prevent access to user data by its own law enforcement agencies but the sheer scale of this centralized data raises concerns about government surveillance.
Besides Singapore and Australia, a number of other countries have also developed mandatory contact tracing apps, including India, Bahrain, Turkey, Qatar and of course China.
Let’s look at a worst-case scenario, using China as the example.
How does it work in China?
According to a March 1, 2020, article in The New York Times by Paul Mozur, Raymond Zhong and Aaron Krolik, as the Chinese return to work after the Covid-19 outbreak, people are being required to use a new smartphone app dictating whether they are allowed onto subways, malls and other public spaces.
As part of China’s Alipay system with over 900 million users, the app uses big data to assign each person a green, yellow or red code indicating their health status. A green code enables its holder to move about unrestricted. Someone with a yellow code may be asked to stay home for seven days. Red means a two-week quarantine. A person with a yellow or red code may be prohibited from traveling without even knowing why.
The New York Times analysis found that China’s app may also share information about the person’s location and an identifying code number to the police, setting a template for new forms of automated social control that could persist long after the pandemic is over.
It noted that each time a person’s code is scanned – at a health checkpoint for instance – his or her current location may be sent to the system’s servers, allowing the authorities to track people’s movements over time.
Of course, mandatory smartphone apps in China are not limited to the Covid-19 pandemic.
According to China expert Steven Mosher, China has another smartphone app called “Study the Great Nation,” the most downloaded app in China, developed by the Chinese Propaganda Department to disseminate propaganda news and speeches by President Xi Jinping with daily quizzes.
According to Mosher, the 94 million members of the Chinese Communist Party are required to download the “Study Xi Strong China” app on their phones, do a half hour of homework each day, and correctly answer questions in the app in order to remain party members in good standing.
China’s social credit score system
The Chinese smartphone apps go hand in hand with its “social credit score” system which has been monitoring and controlling citizens’ activities since 2014 using a “points” system that rewards or punishes people according to their good or bad behavior as defined by the Communist Party.
In the city of Fuzhou, a large city in southeast China, volunteering for approved causes can get you 10 points while being an exemplary Communist Party member will get you 50 points. If you receive a national-level award, you get 80 points.
On the other hand, you can get a low social credit score by defaulting on a loan, criticizing some government policy online or spending too much time playing video games on the internet.
Possible punishments can include blacklisting the person from access to high-speed trains, airplanes, desirable housing, car loans, good schools or the best jobs.
China’s Deadbeat Map
China even has a “Deadbeat Map” connected to a messaging app called “WeChat,” which shows a radar-style graphic identifying every “deadbeat” in the user’s vicinity. A person whose social credit score falls too low may even be arrested and sent to a “re-education camp” where they are subjected to abuse and political indoctrination.
According to Steven Mosher, snitching on your neighbor or a co-worker in China can earn you some extra “social credit” points or even a cash reward in some cases.
A court in eastern China rewards reporting on local deadbeats by sending advertisements to their friends and family on “WeChat” offering money for telling the court about new debts. Individuals can get even more points by reporting on those who violate government restrictions on religious practice, such as Christians meeting illegally to pray in private homes or Muslim Uyghurs and Kazakhs in China’s far west who are spotted praying in public, fasting during Ramadan or even growing a beard.
China’s already-formidable police state is being upgraded using big data, machine learning, facial recognition technology and artificial intelligence to identify people and their locations in an instant, to create the world’s first high-tech digital dictatorship.
While contact tracing and the new apps in our country won’t necessarily turn us into China, do we in the U.S. really want to start down this road?
Big Picture perspective
Covid-19 is today’s problem while the erosion of our civil liberties has far more lasting and drastic consequences, as anyone can learn from studying history or modern tyrannical governments like China and North Korea.
We in the U.S. have a strong tradition of individual rights, freedom, and a healthy distrust of the government, and a Constitution that was superbly designed to prevent this sort of thing. Let’s not throw all of that away in a knee-jerk reaction to a short-term health scare.
David G. Bjornstrom is a Santa Rosa, CA-based attorney at law with 36 years specializing in business, estate and tax law. He may be reached at firstname.lastname@example.org
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »