By the time you finish reading this article, another American will be dead from COVID-19. And three minutes later, another, and then another. Faced with a tidal wave of death unparalleled in modern history, we are rushing to put in place the public health solutions to track, trace, and treat this virus.
But as we have already seen, rushed solutions carry a higher price than expected. As states look to expand the most crucial part of this public health effort, contact tracing, the stakes couldn’t be higher, and unless we change course, America will hurtle to a public health disaster. That much is obvious. What is less clear is that it will also be a civil rights disaster.
Ideally, local and state contact tracers should reach out to every COVID-19 patient, asking about every person they’ve come into contact with for the past two weeks. In the hands of public health officials, this intimate data is absolutely necessary and will save lives. But if this same information is obtained by law enforcement agencies and ICE, it won’t just undermine our most important rights—it will set back the efforts to combat COVID-19.
If public health data becomes just another policing tool, the consequences will be disastrous. Communities of color—which already bear the brunt of this nightmarish pandemic—will face an impossible choice: help public health or protect yourself and loved ones from police. For immigrant communities, particularly undocumented Americans, ICE’s constant threat of deportation will make the risks even more extreme.
Such abuses are severe but not unexpected. ICE and law enforcement already weaponize other public records wherever they can. Have a driver’s license or passport? In many states that means you’re also in a federal facial recognition database. Taken a DNA ancestry test? Well, law enforcement might know your genealogy too.
If law enforcement has access to nearly ever other database available, why should we expect anything different for contact tracing data? Today, officials can get contact tracing information with a simple subpoena for rummaging through your house or emails. But contact tracing is some of our most sensitive information, and it should have more protections, not fewer.
Contact tracing works only when patients honestly tell contact tracers about every person they’ve been near. Those answers can be embarrassing, revealing affairs, illicit drug use, or even crimes. But a full accounting is the only way to quickly test and quarantine every American exposed to the virus. But as the law stands today, there is simply nothing to prevent police from using this intimate information for even minor crimes and to expand their already immense databases.
Lawmakers need to act, but they don’t have much time. Every day that passes without contact tracing safeguards, every day we further reopen the country, we make more and more patients choose when to help contact tracers and put their families at risk.
Luckily we already have a model for this, a type of sensitive information: the U.S. Census. Every 10 years, when the census asks us to say how many people live in each home, it states that revealing census data is a federal crime. If police want access to census data, it doesn’t matter if they have a warrant or probable cause—there is a flat-out ban on police obtaining it.
If a census worker shares information with the FBI or ICE, they won’t be demoted, they won’t just be fired, they’ll be imprisoned. The standard for contact tracing should be no lower. Existing House and Senate legislation falls far short of this standard, creating countless carve-outs and weak enforcement mechanisms. By allowing contact tracing to be used in any prosecutions, by only requiring police to provide a warrant, law makers don’t come close to solving the problem.
The census didn’t always have strong privacy protections. In fact, census data fueled one of our nation’s darkest chapters: the imprisonment of more than 120,000 Americans of Japanese descent during World War II. During the Japanese internment, military officials and FBI agents used census records to track Japanese families, forcing them out of their homes and into brutal, at times fatal, internment camps. This is the type of data abuse that we can’t allow to happen again.
Post-war census officials knew that they could never get an accurate count if the public feared that census information might be used against them. And so, in 1952, Congress enacted the privacy protections that are in place to this day, barring the use of census data for any other purpose.
Because of the pandemic, there is only a brief window for Congress and state legislatures to act. It needs to enact a complete ban on use of contact tracing data for any purpose other than identifying those exposed to COVID-19. But if they let it pass by, they will not just undermine public health, they will give law enforcement a terrifying new power at a moment when millions fear the powers police already have.
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.