Senate Dem Says Surveillance Not Way To Fight Coronavirus

By Allison Grande
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Law360 (April 8, 2020, 11:27 PM EDT) -- U.S. Sen. Ed Markey, D-Mass., is raising alarms about the White House's reported plan to create a national coronavirus surveillance system to more precisely track where patients are seeking treatment, arguing that such a move would threaten individuals' privacy and civil liberties. 

The longtime lawmaker voiced his concerns Wednesday, a day after Politico reported that a coronavirus task force led by White House senior adviser Jared Kushner has been reaching out to health technology companies about standing up a nationwide surveillance system to give the federal government near real-time insight into who's being treated at hospitals and for what. 

The White House has responded by calling the Politico report "completely false," but Markey said that he was still "deeply concerned" by the prospects of a vast surveillance network being set up to tackle the spread of COVID-19.

While the senator acknowledged the importance of seizing on "technological innovations and evidence-driven collaborations" to fight the global pandemic, he argued that compiling a national database of sensitive information about patients' whereabouts and treatments was a bridge too far. 

"In moments of crisis like this, we should not simply accept the declarations by some in power who will tell us that we have to stray from the guiding principles and civil liberties that make us who we are. They are wrong," Markey said in a statement. "We do not have to forgo all privacy in a pandemic nor watch a surveillance state take root."

Markey said that he would be calling on the White House "to provide more details of this effort."

"The Trump administration has not given me or the American people any confidence that it is capable of creating or maintaining a massive health data network in a manner that doesn't undermine our fundamental right to privacy," the senator added. 

While the White House has yet to comment on Markey's concerns, it has fired back at the Politico report by asserting that the story "makes no sense and is completely false."

"The White House gets many unsolicited random proposals on a variety of topics, but Jared has no knowledge of this proposal or the people mentioned in this article who may have submitted it," White House spokesman Avi Berkowitz said in a statement provided Wednesday to Law360. 

According to the Politico report, which came out Tuesday evening, Kushner's task force is looking into setting up the surveillance system as a way to better understand how the virus is progressing throughout the country and which areas are being hardest hit. 

The plan would draw on detailed information about hospital visits and treatments from multiple private-sector databases, four anonymous sources told Politico. The data would allow federal officials to continuously track elements like hospitals' bed availability and the flow of emergency room patients  —  information that would help the government decide where to allocate resources and at what point strict social distancing measures can begin to be eased up, according to the report.

While health privacy laws contain broad exemptions that free hospitals to share relevant patient data with state health officials, the federal government generally isn't privy to this information. According to the Politico report, the rumored national surveillance system raises concerns about its impact on privacy and civil liberties once the public health emergency recedes and has drawn comparisons to the sweeping spying measures put in place after the 9/11 terrorist attacks. 

As of Wednesday night, more than 1.3 million cases of COVID-19 and nearly 80,000 deaths had been confirmed globally, according to the World Health Organization

The virus' rapid and persistent spread has prompted governments around the world to look into ways to use location data culled from smartphones to track people who have tested positive for the virus. The move has raised concerns about what data governments will actually be getting and if the information can be tied to specific individuals. 

Google also recently announced plans to start publishing so-called COVID-19 mobility reports showcasing how people are moving around amid the coronavirus pandemic, prompting Markey and fellow Democratic Sen. Richard Blumenthal of Connecticut to press the tech giant in a Tuesday letter about what types of data it will be using for the reports and with whom it will share this data. 

The Senate Committee on Commerce, Science and Transportation is holding a paper hearing Thursday intended to solicit expert opinions on "enlisting big data in the fight against coronavirus."

Committee members and witnesses are slated to submit written statements, questions and answers to examine recent uses of aggregate and anonymized consumer data to identify potential hot spots of coronavirus transmission and to help accelerate the development of treatments. Participants will also examine how consumers' privacy rights are being protected and what the U.S. government plans to do with data that has been collected once the health emergency is over, according to committee Chairman Roger Wicker, R-Miss.

The American Civil Liberties Union has also strongly signaled its concerns about the privacy implications of using location data to implement public health measures.

The group released a white paper Wednesday urging government officials and companies to ensure that any use of sensitive location data is "temporary, restricted to public health agencies and purposes, and should make the greatest possible use of available techniques that allow for privacy and anonymity to be protected."

"Policymakers must have a realistic understanding of what data produced by individuals' mobile phones can and cannot do," according to the white paper. "As always, there is a danger that simplistic understandings of how technology works will lead to investments that do little good, or are actually counterproductive, and that invade privacy without producing commensurate benefits."

--Additional reporting by Nadia Dreid. Editing by Breda Lund.

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