Nine months into the crisis, Schwartz said, the "worst ideas" being deployed internationally have yet to take hold in the U.S. But that doesn't mean COVID-19 hasn't created a slew of smaller, but still insidious privacy setbacks for Americans who, in recent years, have become increasingly wary of all the intrusive ways that governments and private companies use their personal data. Since March, corporate offices and college campuses have been flooded with biometric scanners, employers have deployed software that lets them remotely monitor workers' keystrokes and giant corporations like Ticketmaster have contemplated linking people's negative COVID-19 tests to their tickets to gain entry to future events. While many of these precautions are well-meaning attempts to preserve public safety and to use technology to get the economy up and running again, they can come at a cost to personal privacy. And yet, the crisis has once again relegated privacy legislation to the back burner in Congress as lawmakers battle over how to handle dueling health and economic disasters.
Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project, says the COVID-19 pandemic has become a "cash grab" for surveillance tech companies. "I think this has been the most dangerous moment for civil rights since 9/11," he said. "When you're faced with impossible choices like whether or not to keep schools open and deprive kids of an education or put them at risk, it's so easy to be taken in by the allure of magical thinking and startups that say if you just install this tracking device you'll somehow be able to avoid doing the impossible."
Contact tracing has been a source of concern, as governments across the country work with a slew of private firms to manage manual contact tracing with no real guardrails in place. "People by the thousands are telling contact tracers where they've been, who they're with, and we don't think there are sufficient ways to secure that data, especially when private contractors or for-profit corporations are helping," Schwartz said.In New York, Cahn's organization supported legislation that would have protected New Yorkers from having their contact tracing data used against them in court or administrative proceedings. That bill passed over the summer, but Governor Andrew Cuomo has yet to sign it into law, leaving that information vulnerable. "In most states, police or ICE can get contact tracing data with a subpoena," Cahn said. "This not only creates a privacy threat, but it's a public health nightmare. There are millions of Americans who would second guess whether to fully disclose their potential contacts."
Apple and Google partnered on a contact-tracing tool that went to extremes to ensure people's data wouldn't be centrally stored or shared with either company or with the government. But health officials, at least early on, scoffed at the limitations. "Digital apps and technology have struggled in the in-between space of wanting to track the path of this disease, this virus, while at the same time really struggling with very real privacy concerns," said Malkia Devich-Cyril, founding director and senior fellow at the advocacy group MediaJustice. The imminent rollout of a vaccine presents even trickier questions, like what happens if businesses or governments begin requiring people to prove they've been vaccinated in order to access certain spaces. California's legislature already defeated a bill that would have created a blockchain-based system to create what Schwartz calls "immunity passports." EFF argued that requiring people to hand over their smartphones to prove their immunity would open them up to other privacy invasions and would require people to have a smartphone in the first place. "We view this as a horrible, horrible idea," Schwartz said, noting that EFF will be "in the trenches" if any similar proposals arise.
Over the course of 2020, there have been other, subtler attitudinal shifts too. In the spring, news outlets that, in the past, criticized apps for surreptitiously tracking and selling people's location data, suddenly began tapping that same data to track where people were actually staying at home or whether anti-shutdown protesters might be spreading the virus. "We think there's a lot of COVID-washing going on," Schwartz said.That COVID-washing hasn't been uniform though, Devich-Cyril said, noting that Black and brown communities with a long history of being surveilled remain wary of that kind of intrusion. "The simple fact of a medical disaster is not enough to turn people away from their desire for basic freedoms and rights," Devich-Cyril said.
Still, despite these setbacks, privacy advocates did score some wins in the midst of the chaos. On Election Day, Portland, Maine succeeded in banning facial recognition technology. Michigan voted to require police to seek search warrants before accessing electronic data. And California passed Proposition 24, a measure that rewrites the California Consumer Privacy Act and gives Californians new rights over protecting their data. "That is the story of privacy in 2020," said Jim Steyer, CEO of Common Sense Media, which backed Prop. 24. "That was a significant step forward." It's worth noting that not all privacy groups celebrated the passage of Prop. 24. Some, like the American Civil Liberties Union, opposed it over concerns that it created new privacy loopholes for businesses.
Eshoo (CA-18) and Zoe Lofgren (CA-19) introduced the Online Privacy Act of 2019, H.R. 4978, sweeping legislation that creates user rights, places obligations on companies to protect users’ data, establishes a new federal agency to enforce privacy protections, and strengthens enforcement of privacy law violations.
Schwartz is at least relieved that so many of the "bad ideas" that emerged at the beginning of 2020 have not been adopted in the U.S. But as the pandemic rages on through 2021, the fight for privacy in the face of a global health crisis will undoubtedly continue.
In addition to the EU’s GDPR (which has already generated over €56 million in fines since its implementation in May 2018), California’s CCPA and Brazil’s LGPD privacy regulations—passed last year to go into effect in 2020—more data privacy legislation is in the works, including at other US states like Massachusetts, as well as countries such as India and Japan.
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