"COVID19 Exposes the Shallowness of Our Privacy Theories"

A post by Prof. Jane Bambauer (Arizona) forthcoming at Truth on the Market, which she graciously let me reblog.


I've long much admired Prof. Bambauer's work, and when I saw this forwarded to a lawprof discussion list I'm on, I asked her for permission to repost it:

The importance of testing and contact tracing to slow the spread of the novel coronavirus is now pretty well understood. The difference between the communities that do it and the ones that don't is disturbingly grim (see, e.g., South Korea versus Italy). In a large population like the U.S., contact tracing and alerts will have to be done in an automated way with the help of mobile service providers' geolocation data. The intensive use of location data in South Korea has led many commenters to claim that the strategy that's been so effective there cannot be replicated in western countries with strong privacy laws.

Descriptively, it's probably true that privacy law and instincts in the US and EU will hinder virus surveillance. The European Commission's recent guidance on GDPR's application to the COVID-19 crisis states that EU countries would have to introduce new legislation in order to use telecommunications data to do contact tracing, and that the legislation would be reviewable by the European Court of Human Rights. No member states have done this. Even Germany, which has announced the rollout of a cellphone tracking and alert app has decided to make the use of the app voluntary. This system will only be effective if enough people opt into it. (One study suggests the minimum participation rate would have to be "near universal," so this does not bode well.)

And in the U.S., privacy advocacy groups like EPIC are already gearing up to challenge the collection of cellphone data by federal and state governments based on recent Fourth Amendment precedent finding that individuals have a reasonable expectation of privacy in cell phone location data. And nearly every opinion piece I read from public health experts promoting contact tracing ends with some obligatory handwringing about the privacy and ethical implications. Research universities and units of government that are comfortable advocating for draconian measures of social distancing and isolation find it necessary to stall and consult their IRBs and privacy officers before pursuing options that involve data surveillance.

While ethicists and privacy scholars certainly have something to teach regulators during a pandemic, the Coronavirus has something to teach us in return. It has thrown harsh light on the drawbacks and absurdities of rigid individual control over personal data.

Objections to surveillance lose their moral and logical bearings when the alternatives are out-of-control disease or mass lockdowns. Compared to those, mass surveillance is the most liberty-preserving option. Thus, instead of reflexively trotting out privacy and ethics arguments, we should take the opportunity to examine some of the assumptions that are baked into our privacy laws now that they are being tested.

At the highest level of abstraction, the pandemic should remind us that privacy is, ultimately, an instrumental right. It is meant to achieve certain social goals in fairness, safety, and autonomy. It is not an end in itself. When privacy is cloaked in the language of fundamental human rights, its instrumental function is lost.

Like other liberties in movement and commerce, conceiving of privacy as something that is under each individual's control is a useful rule-of-thumb when it doesn't conflict too much with other people's interests. But the COVID-19 crisis shows that there are circumstances under which privacy as an individual right frustrates the very values in fairness, autonomy, and physical security that it is supposed to support.

I have argued in the past that privacy should be understood as a collective interest in risk management, like negligence law, rather than a property-style right. Even if that idea is unpalatable in normal times, I would hope lawmakers can see the need to take decisive action in support of data-sharing during crises like this one. At a minimum epidemiologists and cellphone service providers should be able to rely on implied consent to data-sharing, just as the tort system allows doctors to presume consent for emergency surgery when a patient's wishes cannot be observed in time.

In fact we should go further than this. There is a moral imperative to ignore even express lack of consent when withholding important information puts others in danger. Just as many states affirmatively require doctors, therapists, teachers, and other fiduciaries to report certain risks even at the expense of their client's and ward's privacy (e.g. New York's requirement that doctors notify their patient's partners about a positive HIV test if their patient fails to do so), this same logic applies at scale to the collection and analysis of data during a pandemic.

Another reason consent is inappropriate is that it mars quantitative studies with selection bias. Medical reporting on the transmission and mortality of COVID-19 has had to rely much too heavily on data coming out of the Diamond Princess cruise ship because for a long time it was the only random sample—the only time that everybody was screened.

The United States has done a particularly poor job tracking the spread of the virus because faced with a shortage of tests, the CDC compounded our problems by denying those tests to anybody that didn't meet specific criteria (a set of symptoms and either recent travel or known exposure to a confirmed case.) These criteria all but guaranteed that our data would suggest coughs and fevers are necessary conditions for coronavirus, and it delayed our recognition of community spread. If we are able to do antibody testing in the near future to understand who has had the virus in the past, that data would be most useful over swath of people who have not self-selected into a testing facility.

If consent is not an appropriate concept for privacy during a crisis, that suggests there is a defect in its theory even outside of crisis time. We can improve on the theoretical underpinnings of privacy law by embracing the fact that privacy is an instrumental concept. If we are trying to achieve certain goals through its use—goals in equity, fairness, and autonomy—we should increase our effort to understand what types of uses of data implicate those outcomes, and how they can be improved through moral and legal obligations.

Fortunately, that work is already advancing at a fast clip in debates about socially responsible AI. If our policies can ensure that machine learning applications are sufficiently "fair," and if we can agree on what fairness entails, lawmakers can begin the fruitful and necessary work of shifting privacy law away from prohibitions on data collection and sharing and toward limits on its use.

Health care privacy isn't my field, so I can't speak independently about this, but if you can point to interesting articles on the other side, please pass them along.

UPDATE, Apr. 7, 2020: Here's the official Truth on the Market post.

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  1. Similarly, the rebel activity in Baltimore has shown the shallowness of habeas corpus.

    1. You nailed it in all respects with that comment.

      I think we all know that very few rights are absolute. In a big enough emergency sometimes things are justified that could never be justified in normal times.

      There’s nothing wrong with treating privacy as an individual right. Indeed, there’s everything right with it. And that’s not inconsistent with permitting abridgments of privacy rights in an emergency.

      1. Permitting abridgments of rights is the opposite of liberty or libertarian. I want my rights protected even more strongly during emergencies, not less.

        1. If you want to kill a policy or right, permit no discretion or exceptions to it ever.

  2. “Well, I, for one, welcome our new robot overlords.”

  3. “I have argued in the past that privacy should be understood as a collective interest in risk management, like negligence law, rather than a property-style right. Even if that idea is unpalatable in normal times, I would hope lawmakers can see the need to take decisive action in support of data-sharing during crises like this one.”

    There are two separate issues here that really need to be untangled. Let’s call this the “Sasha says property rights trump an asteroid killing all humanity” issue with theoretical arguments.

    There is a reason to hold onto principles in the face of utilitarian arguments; because rule utilitarianism (understanding the benefits of a rule) is hard, while understanding the costs and benefits in a particular case is easy. Too abstract? Okay, let’s make it more concrete.

    Attorney/client privilege has a great utility for society (assumedly … let’s pretend for now). We believe that it is important for people to lie … um, speak freely to their attorneys without their attorneys being forced to divulge their information. For this reason, we protect it even when it might be nice to have that information. Because if we just said, “Hey, we only protect it … when it’s worth protecting, kind of a risk management sort of thing” then it wouldn’t be protected in so-called bad cases, and why bother having it? It’s the same with many things- property rights, for example. If we weaken property rights every single time it might be a little bit convenient, then there is no point at all in having them.

    ….but, there is no point in having property right when we are all dead. If your argument is, “I’d rather all of humanity be killed by an asteroid than weaken mah propertah rights …” then something has gone horribly wrong. There will be, on occasion, a sudden EMERGENCY that requires a very brief re-priortization, but then a return to nomalcy.

    In an epidemic (for example) the normal rights to liberty (movement, quarantine) are lessened, in order to get through the epidemic. It doesn’t mean that we now should adopt a collective interest in risk managing our liberty rights. Nor does it mean that we should now adopt a collective interest in risk managing our privacy.

    1. That asteroid hypothetical has always amused me. People worry about it as if the guy with the 10 cent spare part which nobody else has or can make, does has a magic force field which can ward off thieves and doom the entire world. In real life, the part would be stolen, and the holdout would sue later for theft and damages. And if the holdout had a force field generator, that would be stolen instead and scaled up.

    2. loki has offered the correct comment in response to the OP.

      I will ad that Loki’s take on emergencies, and emergency power is far from new. Google “Lincoln emetics,” for a concise and colorful expression of Loki’s view from about a century-and-a-half ago.

      1. Lincoln, who really did use an emergency to agglomerate power and punish political opponents, is actually an argument against Loki’s position (even though I agree with Loki). That’s like using FDRs Japanese Internment to show why we sometimes need to strip people of their rights in wartime. It’s the exact sort of abuse that we actually are afraid of.

        1. And before someone claims I am being inconsistent- the suspension of habeas corpus during the Civil War doesn’t justify the suspension in peacetime. That was the point of my other comment. However, that doesn’t mean we should be quoting Lincoln, who absolutely did a ton of crap simply because he saw an opportunity to violate the freedoms of his political opponent, as some sort of example of how to handle civil liberties in wartime. Lincoln, Wilson, and FDR are all examples of what we should NOT do.

    3. The only problem I have with your logic is who decides what is an “emergency” or when we can return to “normalcy.” These are all arbitrary and unobjective standards.

      Most people want to believe that humans would never misuse such strong language for their benefit; that real emergencies will turn water into wine and the evil will repent and assist us with our collective survival. That’s not going to happen. It never has nor ever will. This isn’t some cheery sci-fi flick where we unite together as a human race to fight the alien invaders. The moment you give any sort of exception or leeway to absolute rights, they become non-absolute. At that point, it’s only a matter of convincing someone to make an exception this time, as opposed to any collective believe in absolutism. Don’t cede statists territory when they haven’t even demanded it from us yet.

  4. One day after the United States confirmed its first case of coronavirus last January, President Donald Trump assured from the Davos Forum that the situation was under control.

    “It’s just one person who came from China and we have it under control. Everything is going to be fine,” he said in an interview with the American channel CNBC.

    As the days passed, and despite reports of inaction by experts and government critics, Trump insisted that the virus would “disappear” as if it were a miracle.

    “The risk to Americans remains very low. When you have 15 people… in a couple of days it’s going to go down and get close to zero. It’s a very good job we’ve done,” Trump defended on January 26.


    1. And on March 5, a full seven weeks after Trump’s statement you quote and less than four weeks ago, Bill de Blasio took a little ride on the NYC Metro and said the following:

      “I’m here on the subway to say to people nothing to fear, go about your lives and we will tell you if you have to change your habits but that’s not now,” Hizzoner said on a packed C train he caught at the Fulton St. stop Downtown.

      The trip, which lasted just one stop, came at the end of a day that saw two more coronavirus cases confirmed in the city, bringing the total in the Big Apple to four.

      1. Your point is that DeBlasio might be as much a counterproductive dumbass as Trump?

        Clingers crack me up when they try to engage in reasoned debate.

        1. Ooooo… today I finally get to be a “clinger.” I was feeling so left out. Thanks, Rev!

        2. If there’s one US politician to put blame on, it is DeBlasio. Cuomo runs a close second. Here’s why…

          NYC is the epicenter of the current pandemic. And DeBlasio resisted all of the social distancing and shutdowns that were critical in delaying the epidemic. Keeping schools open longer. How bad is it?

          NYC’s playgrounds were only shut down on April 1st. That is…amazing. These common use areas were still open, despite over 50,000 cases in NYC, despite playgrounds in other states being shut down for weeks, despite the clear risk they demonstrate in spreading the epidemic…. Moreover, DeBlasio didn’t even shut them down, it took Cuomo going over DeBlasio’s head to do it. There are two major failures here.

          1. DeBlasio. Just an utter failure in a politician, for failing to shut down things earlier. Utter and entire failure.
          2. Cuomo, for failing to keep DeBlasio in line earlier.

        3. DId you miss the “seven weeks later” bit?

          If someone thought, in July 1939, that Hitler would never invade Poland, that’s forgivable. But in the middle of September …?

  5. Those that value “safety” over rights end up with neither.

  6. Prof. Bambauer makes compelling points. But the analysis seems too shallow. Privacy protections are a subset of lack of trust.

    Allowing temporary incursions into privacy during a crisis implies trust that the incursions will be removed after the crisis is over.

    Complete lack of trust in government used to be the province of anarchists and crackpots. But in the USA today, it also includes millions of Trump haters. Their dislike of Trump is so strong that they will oppose anything Trump says, no matter how sensible.

    Is it Trump’s fault that he is so hated? The question is immaterial.

    We need to rally with united voices about what to do in this crisis. We must not allow personal feelings about our leader divide us into dissenting camps. We must not allow any secondary issue like privacy distract us from the primary needs.

    IMO, we should even be open to China’s brutal and inhumane tactics for containing the virus. Even humanity and human rights are secondary.

    1. “Complete lack of trust in government used to be the province of anarchists and crackpots. But in the USA today, it also includes millions of Trump haters. Their dislike of Trump is so strong that they will oppose anything Trump says, no matter how sensible.”

      Wrong. The people who dislike Trump are not anti-social, anti-government cranks. The people who like Trump are the anti-social, anti-government cranks.

      1. Well, they’re not anti-government cranks in the sense of being consistently anti-government. They’re quite pro-government if they get to run it.

        More anti-governance by anybody but themselves cranks.

    2. Their dislike of Trump is so strong that they will oppose anything Trump says, no matter how sensible.

      That’s an interesting hypothetical, but unfortunately we will never get the opportunity to test it.

  7. “Objections to surveillance lose their moral and logical bearings when the alternatives are out-of-control disease or mass lockdowns. Compared to those, mass surveillance is the most liberty-preserving option.”

    No it isn’t and that’s a false dichotomy.

  8. This is the problem with listing out rights as if they are all unique when in fact they all are derived from the right to property. Just protect my property rights and I couldn’t care less about anything else. If I can do what I want on and with my property then my privacy is protected as much as I wish. My right to bear arms is protected. My right to free speech is protected. My right to freely exercise religion or peaceably assemble is protected. I only need one right to be protected by government, the rest I can take care of myself.

  9. I disagree with the author’s underlying premise. Privacy is a funamental right, not merely an instrumental right.

    The author is also making several blind leaps about the effectiveness of tracking as a long-term (rather than merely short-term) disease control measure, the ineffectiveness of purely voluntary adoptions and, well, basically everything she says about consent.

    1. It’s not clear what the point of “fundamental” labeling, while you question efficacy. If it’s “fundamental” what difference would it make if it were very effective? And if it would make a difference, the right isn’t “fundamental”.

    2. This.
      “It is meant to achieve certain social goals in fairness, safety, and autonomy. It is not an end in itself.”
      Bullshit. Natural rights (practically everything a human would have if alone in the world, as opposed to legal privileges created by society) don’t exist to achieve anything other than what the individual is interested in exercising them for.
      There’s still going to be a debate about justifiable infringement, but the conversation needs to start about 10 miles further back than where the author wants to start it.

    3. I’d go farther and say the author doesn’t understand what *rights* are, philosophically. All the other errors are inevitable at that point.

      1. Freedom is the goal, not just a means to an end. Come to this country and be free from dictators and warlords and those who demand you get on bended knee for permission to do anything, and waggle their fingers for money to get out of your way.

        That’s all history, and much of the world still currently.

        1. Defining freedom is the problem. We had a redefinition after the Articles of Confederation, after the Civil War, after the New Deal, after the Civil Rights movement.

          Mere invocation of freedom doesn’t say enough.

          1. We did have a redefinition after the Articles of Confederation. And the 14th Amendment did contain a redefinition after the Civil War. There was no such redefinition after the New Deal. And the Civil Rights movement was about finally living up to the Civil War’s redefinition, not another redefinition.

  10. It would be safer if the emergency powers were used at the local level, instead of the national level. A national tracking system seems way overboard when a local system might be nearly as effective at the epicenter(s).

  11. “These emergency powers won’t be abused, and we’ll give them up the moment they’re no longer needed.”
    “This time we’ll do socialism the right way.”
    “I’ll be a benevolent ruler.”
    “It had to be done.”

    If the bill of rights is a little too inconvenient, where do we stop?

    I’ve read this story before, it doesn’t end well.

    1. This is the lesson from history. Not a lesson. The lesson.

      Freedom and democracy fail when the leader is given superpowers to deal with emergencies, and they never give them up.

      The Founding Fathers knew this, which is why our government design is based on the idea government is given power by the people, amd explicitely no other power.

      Assuming the current state is necessary, there should be a lot more talk about this, and keeping an eye on government. The more The People realize their own philosophical heritage, the less likely failure of democracy and freedom.

      Articles like this one fill me with despair, the cavalier way to heave tools from the dictator’s golf bag at the leaders, and do so proudly, whistling past the graveyard of history.

  12. “Fortunately, that work is already advancing at a fast clip in debates about socially responsible AI. If our policies can ensure that machine learning applications are sufficiently “fair,” and if we can agree on what fairness entails,”

    Socially responsible” AI would probably be better termed, “politically correct” AI; The goal is to create AIs that will ignore evidence and reason to arrive at conclusions that are ideologically acceptable to the people designing them.

    1. “If our policies can ensure that machine learning applications are sufficiently “fair,””

      “if we can agree on what fairness entails,””

      So two major requirements that will never be achieved.

      1. No kidding. People have been arguing about what fairness is since Plato and Aristotle. Not an evolving debate – pretty much the same debate. Nothing has been clarified, and people are as divided today as they were then. (And since most people’s intuitions aren’t consistent, you can get the average person to agree with both competing conceptions of fairness in different contexts, and not even realize they’re doing it).

      2. It’s worse than that. Watch his video on fairness: The first thing the presentation does is reject the idea that the output of an algorithm ought to faithfully reflect the data!

        The whole point of the ‘algorithmic fairness’ movement is to sacrifice evidence and reason to ideology. It’s to rule out the AI objectively telling you something you don’t want to hear.

  13. It isn’t that hard to say “go get a warrant” for those that refuse to provide the data voluntarily. If you go to any judge and said, “this person has been proven to have the coronavirus and has likely infected others. We need access to their phone’s location history so we can alert and test those they came into contact with.” I cannot imagine any judge in the country who wouldn’t sign off on such life saving measures. Does taking the five minutes to get a neutral adjudicator to sign off first isn’t going to slow things down in any meaningful way.

    1. While I tend to think you’re right that (almost) every judge would sign off on it, they would be abdicating their duties if they did so.

      Remember that a warrant to search or seize evidence of a crime requires that there be a suspected crime for which there is probable cause to believe that search or seizure will obtain evidence of the suspected crime.

      What crime would be suspected?

      Warrants aren’t merely a “can I do this?” Request from one part of the government to another, they’re only for seeking evidence of crimes. Other countries in other times have had such tribunals as you imagine in your comment, and I suspect many judges would indeed issue such warrants, but they would be invalid on their face, unless some specific crime could be alleged.

      I can’t think of any federal crimes that meet the generic scenarios, nor even local crimes in any jurisdiction I’m familiar with. While there may be instances where a warrant should issue (a person knowingly trying to infect others is the crime of assault), that’s just not true in the generic case.

    2. Much as I despise the proposal above, this argument against it won’t fly. For the proposed monitoring to work, users have to have the app on and running well before they get sick or are even exposed. The phone’s generic location history is not nearly detailed enough to do the contact mapping this article envisions.

  14. The compelling interest rubric would to seem to work here. One could have a legislative framework in which one normally has certain rights, and they work in most cases, but they get trumped under certain emergency conditions, with checks and balances to ensure that emergency decrees can’t be used lightly.

  15. If your data collection clashes with DP law, chances are you do data collection wrong, not that DP law is an unreasonable obstacle. An initiative to collect privacy compliant all the data needed for the Covid response is e.g. here: https://www.pepp-pt.org/

    And if there is really a problem, then it is such a change from agreed standards that having to “introduce new legislation […] reviewable by the European Court of Human Rights.” – is exactly the right thing – surely such a serious issue must come from the elected legislative power and a full debate, not say by the police.

    Finally, while the loss of liberty through curfews is more severe NOW than data gathering, the problem is that the data (potentially) stays there in the long run, long after the crisis. And there will be calls to use it for all sorts of purpose, from terrorism, to immigration to “someone was mean to the prez on twitter”. If on the other hand a robust, transparent and entrenched DP regime is already in place, then this danger can be managed (e.g. transparent destruction of data once not needed any longer) . But these robust safeguards are of course just what those who now clamour for health data railed against and dismantled (incl, a Volokh contributor)

    Strong and transparent DP laws with enforcement teeth help, and don’t hinder, data collection during crisis

  16. Didn’t we hear similar lies almost 2 decades ago when the Patriot act was passed?

    Fool me once shame on you …

  17. Contact tracing never had a chance to work in the USA, because the CDC and FDA delayed the production of effective test kits. They allowed production only by a single source, and that source made a little mistake.
    That’s not surprising in the rushed introduction of a new test; the problem is that for weeks others were forbidden from trying to produce a test. The agencies didn’t lightly decide to restrict testing to only the most severe cases; they _had_ to restrict it because of a lack of kits to test more widely. Eventually they allowed every well-qualified source to produce test kits, but it was about March 19 when that larger supply of kits began to reach the authorities in Detroit – and the virus had been running loose for over two months.

    When most cases are either symptomless or show the same fever and cough symptoms as the flu or several other viruses, tracing contacts only from the cases that became severe would miss most of the carriers. They needed test kits for everyone who’d been near a known case to identify those other carriers, but by the time the production of test kits caught up with the suspected cases, the virus had been spreading for two months and was spread too widely for contact tracing to ever catch up. A few days after enough test kits came in to allow widespread testing, there weren’t enough medical workers to test all the people that cell phone data might have shown had been near the newly discovered cases. You might as well lay plans to test everyone in NYC, Detroit, and other hard-hit metropolitan areas, because by the time you’ve traced the contacts almost everyone will have been exposed.

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