When a crisis rears its head and government and the tech community invent ways to handle it, lots of personal data is collected and stored. What happens to that data once an emergency passes? What happens to the technologies used to collect it? What civil liberties are at risk?
“There are always institutions and people waiting in the wings who want to expand invasions of privacy and (stymie) civil liberties,” said Jay Stanley, senior policy analyst for the American Civil Liberties Union. “When an emergency comes along, we often see, intentionally or unintentionally, more cynical efforts to grab power using that emergency.”
Think Patriot Act after the 911 attacks. The government proposed sweeping expansions of police powers without analyzing the existing shortcomings of laws already in the books.
“Congress rammed through the Patriot Act with no rational attempt to determine if the additional powers helped,” Stanley said. Many of those new powers, years later, are still in place.
The Patriot Act introduced “a plethora of legislative changes which significantly increased the surveillance and investigative powers of law enforcement agencies in the United States,” according to the Electronic Privacy Information Center. “The Act did not, however, provide for the system of checks and balances that traditionally safeguards civil liberties in the face of such legislation.”
Hoping to prevent a repeat
Civil liberties organizations, including the ACLU, are hoping the work they are doing now will prevent a similar issue with technologies used to battle the COVID-19 pandemic.
The ACLU is “particularly wary of technological solutions that would interfere with or divert resources away from public health solutions with proven effectiveness, or that risk exacerbating existing disparities that have already led to inequitable health outcomes,” it said in a blog post.
“Perhaps the most prominent discussion about using technology to help fight the coronavirus has revolved around how high-tech tools can augment contact tracing. One of the oldest and most basic techniques for slowing the spread of disease, contact tracing involves tracking an infected person’s past interactions so that those who may have been exposed can be identified.”
Thankfully, Stanley said, early proposals to use smart phone location tracking data were dismissed. That’s not only inaccurate much of the time, but is an invasion of privacy, he said.
“It is always easier to resist an expansion of powers than it is to roll them back, so what you see is the emergency and everybody anxious to deal with the emergency and place their trust in leadership to lead them out of the desert, then leadership uses that to grab power in some ways,” Stanley said. “It ends up being a conversation like ‘why should we have to jump through all these bureaucratic hoops, like getting warrants?’”
The ACLU was filled with trepidation that the pattern of the Patriot Act would repeat with the COVID-19 crisis, he said.
“A communicable disease is justly the cause for allowing governments expanded powers,’’ he said. “Governors and others have pretty extraordinary powers already in law to deal with communicable disease. We were afraid we would see new powers used and particularly new technologies deployed in ways that would outlive the COVID emergency.”
The MacArthur Foundation, which bills itself as a private foundation committed to a more just, verdant and peaceful world, recently doled out $1.6 million in grants to five Chicago-based agencies studying just the kind of issues the ACLU is concerned about.
“We did not do an open applications process,’’ said Eric Sears, program officer for MacArthur’s Technology in the Public Trust Program. “We welcome any ideas all the time within tech and the public interest but were trying to connect local conversations in Chicago with state and national and even global conversations. We wanted to connect the dots.
“The conversation in deciding to award these grants was really a belief that there is a role for technology in helping to address the crisis,’’ he said. “But while we are considering the integration of technology to solve problems, we need to think of the social implications. Who are the beneficiaries of the technology and who has access? MacArthur is trying to support a group of organizations exploring both the social implications and technology to solve and mitigate.”
There is an old saying, Sears said, “that technology is neither good, nor evil nor neutral. If we are interested in advancing civil rights and civil liberties, we have to focus on the harms that can emerge.”
Here is a look at the five grants MacArthur awarded:
- Roger Baldwin Foundation of the ACLU — $300,000 over two years to ensure technology and data used to respond to the pandemic in Illinois is done in a way that advances equity and protects civil rights and civil liberties.
- Crossroads Fund — $300,000 over two years to launch a network of technologists and community organizers in Chicago working to ensure community perspectives help determine how technology is used and deployed.
- Berkman Klein Center for Internet and Society — $250,000 over 18 months to help public and private decision makers develop policies and practices around the use of digital tools and data in response to COVID-19 that incorporate equity, inclusion and replicability.
- Social Science Research Council — $500,000 over one year in support of the Just Tech program and the international Public Health, Surveillance and Human Rights Network, which will examine how to implement mass testing and contact tracing in a way that advances equity in health outcomes and protects rights and liberties.
- The Citizen Lab at the University of Toronto — $250,000 over one year to scale up its response to COVID-19 through activities such as tracking emergency contact tracing app laws globally, forensic analysis of contact tracing and related apps from countries with poor human rights records and examining how emergency measures and contact technologies create risks for historically marginalized communities.
“You can imagine different kinds of technology used by a range of actors where the user did not know that would be the intent,” Sears said. “When you are looking at a collection of sensitive data, it could be misused by law enforcement or in policing. This is not exclusively about government. There is private sector.” The data could be used by commercial actors who might discover or leverage the data for different purposes, as well, he said. “These are the kinds of questions and topics we thought were important to bring into view.”