Feds Face FOIA Suit Over Palantir's COVID-19 Data Platform

By Joyce Hanson
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Law360 (February 19, 2021, 8:07 PM EST) -- Four nonprofit racial and immigrant justice groups have sued the U.S. departments of Homeland Security and Health and Human Services in D.C. federal court, accusing them of withholding information about the government's use of a surveillance and data analysis platform made by Palantir to track the COVID-19 pandemic.

The Electronic Frontier Foundation on Thursday filed a Freedom of Information Act suit against the DHS and the HHS on behalf of immigration attorney organization Just Futures Law, the California-based MediaJustice policy group, the Arizona-based immigration and social justice-focused Mijente Support Committee, and the Immigrant Defense Project sponsored by the Fund for the City of New York.

The four groups filed FOIA requests in 2020 for information about COVID-related surveillance and data analysis last year because they're worried about HHS Protect, "a vast secretive data platform designed by controversial data software company Palantir," according to the Electronic Frontier Foundation.

The EFF says that Palantir Technologies Inc. has a long history of building surveillance systems for DHS that assist it in pursuing criminal prosecutions, separating families, and conducting raids that lead to detention and deportation. The federal government in July required all hospitals to report COVID-19 infection data to HHS Protect instead of the information system operated by the U.S. Centers for Disease Control and Prevention, the EFF says.

"Many technology companies, such as Palantir, Amazon, and Google already sell massive data collection or analytics services to government agencies, including police departments and Immigration and Customs Enforcement," according to the Thursday complaint. "Nevertheless, the federal government has until recently required that healthcare-associated infection data be reported to the CDC-operated National Healthcare Safety Network."

HHS Protect became operational in April 2020 after the department contracted with Palantir to build the new system to track COVID-19 infection data, according to the suit. The system brings together more than 200 disparate data sources into one "ecosystem" that integrates data across federal, state and local governments as well as the health care industry, the suit says.

Since June, the four groups have repeatedly requested information under FOIA to see how the HHS and DHS are expanding surveillance during the COVID-19 pandemic, "and to what extent governments and companies are collecting and sharing this data for possible uses beyond addressing the immediate health crisis," the suit says.

But both agencies have dragged their heels on answering the groups' requests for data sources, collection methods and other records, the suit claims. To date, both the DHS and the HHS have wrongfully withheld the requested records from the plaintiffs, according to the suit, which asserts three counts of FOIA violations.

Julie Mao, deputy director of Just Futures Law, said in a statement Friday that the groups know the government is collecting huge amounts of health data, and they want to understand the extent of the surveillance so the public can evaluate the efficacy of the technologies and risks they might pose in the future.

"For example, we've seen a lot of location data gathered from mobile phones or contract tracing apps, but scientists have questioned the effectiveness of such mass surveillance at mitigating disease spread," Mao said. "The public has the right to know what sensitive information these agencies are collecting and to evaluate its utility."

An HHS spokesperson declined to comment Friday, saying the department doesn't comment on open litigation. Representatives for DHS did not immediately respond Friday to requests for comment.

Just Futures and the other plaintiffs are represented by David L. Sobel and Alexandra H. Moss of the Electronic Frontier Foundation.

Counsel information for the DHS and HHS was not available.

The case is Just Futures Law et al. v. U.S. Department of Homeland Security et al., case number 1:21-cv-00430, in the U.S. District Court for the District of Columbia.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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