Commentary: Is there threat to privacy in anti-COVID efforts?

By Hannah Sells Marcley / For The Herald

“I don’t care about the government looking at my phone. I’m not a criminal or anything,” a friend told me, less than two hours after texting her cannabis dealer.

This response comes up whenever I talk about the right to privacy. “So Google has my location. So what? They’re just going to send me better deals for local restaurants.” Or “Yeah, I mean if it helps them catch bad guys that’s probably worth it. As long as they don’t tell my wife!” I have been baffled by how little everyone seemed to care about something so important to me. But now, I know we are really talking about two different things. We define privacy differently.

When most people say “privacy” they mean “secret.” And keeping secrets sounds like a thing you did with your elementary school friends, not a constitutional protection. If all I’m giving up is a silly secret, such as “I am at the coffee shop,” why wouldn’t I trade that for more safety?

This thinking is most obvious in times of crisis. In the 1950s, we threw privacy rights out the window in response to Sen. Joseph McCarthy’s communist alarmism, exchanging privacy for security. After the Sept. 11 terrorist attacks on the World Trade Center, the same logic led us to pass the USA PATRIOT Act, which granted sweeping surveillance and investigative authority to law enforcement.

Now, in the face of the COVID-19 crisis, we face a similar threat to privacy. Many leaders have proposed “contact tracing” programs to prevent resurgence in the number of cases, once stay-at-home orders are lifted. Contact tracing, which means identifying infected people and anyone with whom they have had contact, has proven useful in fighting other diseases. In the past comprehensive tracking was labor-intensive, requiring massive phone banking efforts. Modern monitors can rely on app-based tools that report users’ movements and alert the user if their path crosses another infected user’s path. This new, app-based version of contact tracing creates new privacy concerns.

Those who think of privacy as “keeping a secret” are probably saying “So what? I go to the grocery store, I putter around my yard, I walk my dog. … Who cares?” This is where our definitional differences come up. Privacy is more than a secret. Your right to privacy protects your right to be anonymous and your right to make decisions, not just what you do in secret.

Your right to be anonymous is key to your privacy. Think of how differently you would feel when a random passerby sees you go to your car, as opposed to a stalker watching for you to go to your car. The act of going to the car isn’t a secret. But if the viewer is looking for you, following you, the observation is an intrusion, a violation.

Anonymity is a basic component of privacy. App-based tracking creates a complete, personalized history of your movements, taking that anonymity away. That might not scare you now, but what if 2020 sees us elect another Sen. McCarthy? Do you want that data available to someone who could use it to identify people who voted a certain way? The data we give up is out of our control forever.

From a legal perspective, privacy also means the right to act without interference. When the law refers to your privacy, it includes your right to independent decision making. The right to privacy was the basis for Roe v. Wade, even though there was no question of whether Ms. Roe’s abortion could be kept secret. The question was whether anyone had a right to interfere in her decision. Privacy, even in the secret-keeping sense, is what guarantees your freedom from interference. Some things, like your location, are simply no one else’s business, even if you are not actively hiding them.

So far, three local governments are already using app-based contact tracing programs. We will see how many more implement this and whether the app’s tracking is voluntary. As a society, we should think hard before we trade away our privacy for a chance at safety.

We should remember that during Jim Crow era, some states tried to force the NAACP to disclose member lists in the name of protecting the public. Fortunately, the Supreme Court held that privacy was constitutionally protected because disclosure would expose them to harassment.

Maybe it is just keeping secrets. Maybe it’s more than that. No matter what privacy is, don’t give it up lightly.

Hannah S. Marcley is a government accountability advocate who serves on the board of the Washington Coalition for Open Government and as a volunteer attorney for the Seattle Clemency Project.