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Pandemics and Privacy (Digital)

J. Bradley Klepper
Attorney at Law

I am sick of Covid-19. I am sick of staying home. I am sick of everything being closed. I am sick of people getting sick and dying. I am sick of not knowing how best to move forward. I am sick of not knowing when this will end. In other words, I am sick of this whole damn mess. And I don’t think I am alone.

We are living in crazy times. Covid-19 has, quite simply, changed everything. The way we live and work has changed. Likely forever.

Now before you think I am an eternal pessimist, I want to say that I do think we will come through this better and stronger, albeit different, than we were before. We have faced crisis before and always prevailed.

However, as is the case immediately following most catastrophes the government may restrict certain liberties we have enjoyed in order to gain control over the situation. For example, 45 days after 9/11 the government passed the Patriot Act. In essence, the act allowed the government to search things such as telephone, email and financial records without a court order. Many of the provisions of the original Patriot Act was set to expire December 31, 2005; however, many of the provisions have been routinely reauthorized and are valid today. Many were just reauthorized in March of this year.

All this brings me to our current situation.

It appears that the best way to contain the spread of Covid-19 in a partially opened economy is through: (i) extensive testing; (ii) use of personal protection equipment; and (iii) the ability to track individuals who have the virus or who have been in contact with those who have the virus. It is the last one that gives me pause.

Hong Kong, Singapore, Taiwan, and South Korea have all employed this method and have enjoyed “success” (I hate to say success as people are still dying). However, in addition to using humans to trace the virus they also employed surveillance technology. This is where my heartburn begins.

Apparently the US and several European countries are now considering a similar use of surveillance technology to help track those who have the virus or who have been in contact with those folks. In fact, Google has been sharing some of its information on the location and movement of its users to assist researchers and doctors as they combat the virus. Moreover, a team at MIT has developed a proximity tracking application for those who have been in contact with Covid-19 patients. In addition, Google and Apple have already developed apps to allow for voluntary contact tracing.

Now here is where I do a bit of disclosure about myself. For what it is worth, I am NOT a hard core conservative nor do I value a robust economy over human life. I am also NOT a far left liberal who believes that the economy doesn’t matter and the government should do whatever is necessary to support me through this crisis. I consider myself one of the few remaining moderates in the world (there are actually 3 of us and we work 8 hours shifts so someone is always on duty).

I get that public health, privacy rights and a strong economy are all necessary for a democratic society. I understand that there is some need for the government to track the spread of the disease and that, like it or not, some surveillance will likely be implemented. And, let’s be honest, this is already happening to some extent already. How do you thing the “find my phone” function works? Or how your phone is able to refer you to the closest sushi restaurant? My concern is with what information will be gathered, how long will it be gathered and how will it be used.

I also understand that the issues I have with this software have been expressed by other in the industry in regards to ELDs. Specifically, the concern about a device being able to track their location at any given time. However, ELDs and the tracing technology being considered fall into different camps.

The courts have long held that because the trucking industry is heavily regulated that drivers in that industry have a lower expectation of privacy than others. The reasoning goes like this, because the industry is so heavily regulated and the purpose of the regulations is to protect the health, safety and welfare of the public, devices like ELDs do not violated a driver’s right of privacy. They are necessary to accomplish the overarching goal of making the roads safe.

In contrast, the tracking technology discussed above is not limited to the trucking industry or just to time spend behind the wheel. It is on all the time. Regardless of whether you are working or not. Asleep or awake. Travelling or staying. In addition, the information collected is broader.

For example, South Korea collects data from cell phones, GPS, public transportation, credit card data, immigration data and other sources. While all this information can be useful in tracking people’s movement I struggle with the additional implications.

If the magic number for a person to be quarantined is 14 days I would assume this the relevant period of time I would need to be “tracked.” However, what happens to my information after the 14 days. Is it deleted or erased. I doubt it. However, it should be. If 14 days is the magic number then there is no need for the government, or anybody else, to know where I am and what I am doing beyond that time frame.

Also, what about my private information that such surveillance may disclose. What if I am vising the oncologist for cancer treatment? Or meeting with my lawyer? Does the government or anyone else need to know this information?

Moreover, can you imagine the dollar value associated with the history of everyone’s movement? What would a company/person pay to have that information? To be able to know all that information is invaluable. Sure, some of it is already available. But nothing to this extent.

Also, how does this impact an individual’s rights under the 4th amendment? We could write a series of articles about how the courts have interpreted the warrant requirement when collecting data from cellphone providers and GPS records.

The US Supreme Court has recently ruled on a couple of cases addressing digital privacy. In Carpenter v. United States the defendant was allegedly involved in the robbery of a Radio Shack store in Detroit in 2010. Prosecutors relied on 127 days’ worth of cellphone records that placed the defendant at 12,898 locations. The information included whether he had slept at home on given nights or attended church.

In the opinion, Chief Justice Roberts wrote that such information was entitled to privacy protection and a warrant was required. However, the decision made exception for certain emergencies, namely, bomb threats and child abductions. Would a pandemic fall under this exception?

In United States v. Jones, the court limited the ability of police to use GPS data to track a defendants movements. Also, in Riley v. California, the court required a warrant to search cellphones.

In the Jones decision, Chief Justice Roberts wrote “[w]hen the government tracks the location of a cellphone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

At the end of the day, while I agree with the decisions mentioned above, I also understand that some of this information may be necessary to prevent the spread of Covid-19 and save lives. I am at peace with that. However, there need to be safeguards put into place to guarantee that our privacy is protected and that only the information that is necessary is used and only for the relevant time frame. Rather than counting on the courts to react to changes in technology by modifying existing doctrine I believe we need to be proactive. In other words, we need a digital bill of rights.

I wish I could say that this was totally my idea, but it is not. It has been around for years. The current crisis has just brought it back to the forefront. At the Global Forum on Artificial Intelligence last year, French President Emmanuel Macron argued for government to implement a bill or rights providing for fundamental protection in the digital world and said “what is at stake is absolutely critical and core for our democracies.” I agree.
Congress should pass such a bill defining how our digital rights and privacy are to be protected from infringement after this crisis, or any other crisis, is over.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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