Something's in the Air

Liberties in the face of SARS and other infectious diseases

Declan McCullagh from the August/September 2003 issue

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It gives federal officials the authority to appoint quarantine officers, establish quarantine stations, and detain Americans "reasonably believed to be infected" with a communicable disease. Anyone violating a quarantine order can be punished by a fine of up to $1,000 and a one-year prison term. The law applies only to a list of deadly and easily communicable diseases that the president may amend at will, which Bush did in his executive order that added SARS to the list.

The Tradeoff

Then there's MEHPA, the proposed Model Emergency Health Powers Act, which began appearing in state capitals soon after the anthrax scare of late 2001. It expands upon the emergency authority that many cities and states already have arrogated themselves for times of crisis, making explicit what powers public health officials will have.

Among them: seizing property and land as "necessary to respond to the public health emergency," forcibly vaccinating Americans against infectious diseases, and quarantining those who refuse. No court order is necessary to detain someone: "The public health authority may temporarily isolate or quarantine an individual or groups of individuals through a written directive." Backing the proposal are the CDC, the National Governors Association, the National Conference of State Legislatures, and the National Association of County and City Health Officials. So far about two dozen states have enacted MEHPA into law.

MEHPA highlights the difficult tradeoffs of balancing individual liberty with community security. While it is a serious step to limit a person's freedom of movement, there seems to be little alternative in the case of highly infectious communicable diseases. The question then becomes how the law should be worded and how it might work in practice. Critics warn that earlier versions of MEHPA would have handed governors the power to declare public health emergencies over tobacco smoke or obesity -- and seize an extremely dangerous amount of power in the process. The liberal American Civil Liberties Union and the conservative Free Congress Foundation and American Legislative Exchange Council joined to oppose it.

According to the ACLU, MEHPA permits a governor to "declare a state of emergency unilaterally and without judicial oversight, fails to provide modern due process procedures for quarantine and other emergency powers, it lacks adequate compensation for seizure of assets, and contains no checks on the power to order forced treatment and vaccination."

Such powers can be used carefully and can be wildly abused; it's far too early to make predictions. Yet it's worth remembering -- and the 1918 flu epidemic is a major reminder -- that government officials are as prone to mistakes as anyone else. Guénael Rodier, the World Health Organization's director of communicable disease and response, recently admitted that the organization could have done a much better job of responding to SARS early this year by making an earlier public warning. If that had happened, "Toronto would very likely have been spared a SARS outbreak on the scale it has worked so admirably to contain," Rodier wrote in a commentary for the Canadian Medical Association Journal. Richard Schabas, a former minister of health for Ontario, has accused provincial officials of not analyzing SARS data properly, and causing unnecessary panic by overreacting when the disease was confined to hospitals.

Panic, and Other Responses

That's hindsight, of course. But overreaction is a threat whenever governments face an apparent crisis. Officials may respond to pressure either because they believe the crisis is genuine or because they think the appearance of activity on their part is necessary to head off panic. Who wants to repeat what Toronto experienced, when the WHO drove a stiletto through the heart of tourist travel by effectively declaring it a SARS hot zone?

Take what happened in 1998 and 1999, during the so-called Y2K computer glitch. Canadian newspapers reported at the time that the government was considering martial law and the invocation of the Emergencies Act in response to Y2K disruptions. In the U.S., Sen. Robert Bennett (R-Utah) asked the Pentagon what plans it has "in the event of a Y2K-induced breakdown of community services that might call for martial law"; a House subcommittee recommended that then-President Clinton consider declaring a Y2K "national emergency."

One traditional way to manage public reaction is to manage tightly the flow of information, a task that technological advance has made more difficult. Reports of the spread of SARS, for instance, rocketed around the globe even faster than the virus itself. During the early days of the outbreak, an intensive-care specialist at a hospital in Hong Kong turned to e-mail lists to distribute his stark, first-hand reports. "This pneumonia is out there in the community," Tom Buckley told the Critical Care Medicine mailing list on March 24, in a widely forwarded message. "The numbers are increasing daily, and a third hospital is being prepared for the influx. How big this is going to get is anyone's guess." Buckley warned that the Hong Kong government "is downplaying the whole thing presumably because of the economic implications." Buckley's post was prescient. In the two months following his warning, cases of SARS in Hong Kong leapt sevenfold, from 260 to over 1,700 infections. (When contacted for a response, Hong Kong's Health, Welfare and Food bureau replied with a statement saying: "To reassure you that we are not trying to downplay any of the effects, we recognize that in fact the public health considerations must be first and foremost and all the other things are secondary to this.")

In China, the birthplace of SARS, the communist government lied for months. Beijing officially, and implausibly, denied the existence of hundreds of SARS patients in hospitals that had been visited by Western journalists. Then China Premier Wen Jiabao took the unusual step of saying that while progress had been made in limiting the spread of SARS, "the overall situation remains grave." This is the same government that last year, in just one day, upped its official estimate of HIV infections from 30,000 cases to 1 million. In a sign of China's growing desperation, the government said in May that those who break quarantine and spread SARS would be executed. If authoritarianism helped save lives in Singapore, in China it has been deadly.

In this climate of official deception, misinformation about SARS has been spreading so efficiently it would do the common cold proud. Some residents of China's Shanxi province reportedly place their faith in steamed vinegar. A Singapore department store advertises perfume atomizers as effective SARS countermeasures. A teenager's Web hoax claiming Hong Kong's borders would be closed prompted runs on canned foods and toilet paper. A supermarket owner in Sacramento spent two weeks arguing that, contrary to rumors, neither he nor his family is infected with SARS and his stores are entirely safe. A Sacramento city councilman tried to quell panic by bravely chewing a ceremonial Granny Smith apple from the store's produce section in front of reporters.

An in-depth New York Times analysis showed that America is not immune to this 21st-century information contagion. The Times reported that high levels of anxiety existed in states such as New York, California, and Washington that experienced the most SARS cases or had sizeable Asian-American communities. New York City Mayor Michael Bloomberg was worried enough about public panic to dine in a Chinatown restaurant and then hold a press conference about it. OnlineAllergyRelief.com, an Internet retailer in Metairie, Louisiana, that sells air filters and purification products, reports that business is booming. "We have gone through case after case of masks," a representative says. "They're just slow to come in now....A lot of things are back ordered. Our manufacturer doesn't have a really big supply."

Panic mongers inevitably arise to prey on public nervousness. Web sites of dubious provenance tout dietary supplements -- colloidal silver, oregano oil -- as effective anti-SARS measures. Spam touting SARS remedies is on the rise. Gary North, the Christian Reconstructionist who has made a living predicting that modern society will end in panic and ruin, has seized on SARS. In 1980, North forecast rationing of housing and a nuclear war with the Soviet Union, warning his followers to buy "gold, silver, a safe place outside the major cities." Later he found rich topics in AIDS and then Y2K, recommending to his newsletter subscribers that they head for the hills to avoid total social collapse. In an announcement in April, North seized on SARS. He wrote: "It's a race between medical science and the bugs. There is no scientific reason to believe that the scientists will always beat the bugs."