Surveillance Intrusiveness in a Pandemic

Matthew B. Kugler & Mariana Oliver | April 28, 2020

Government surveillance capabilities have always been a matter of public concern, but the current pandemic makes the issue especially salient. We set out to discover what Americans think of government surveillance during this crisis.

Americans have been inundated with media reports of novel forms of public health surveillance since the crisis began. Apple and Google just announced a partnership to create a smartphone contact-tracing application, which would use Bluetooth to trace a person’s movement and contacts. Apple is also using location data from its smartphone Maps application to create “mobility trend” reports that show how smartphone users are moving amidst the pandemic. And who could forget the graphics showing the cellphones of Florida beachgoers dispersing across the country, tracking the locations of thousands of Americans.

Within the public sector, some local health departments, including in Illinois and Ohio, are publicizing data on the number of coronavirus cases by zip code. In Portsmouth, New Hampshire, local police are providing the addresses of infected COVID-19 patients to first responders in an effort to ensure medical personnel use the proper safety gear before entering a home.

Abroad, countries’ efforts to use surveillance technology to combat the pandemic are raising similar privacy concerns. Many countries are using cellphone location data—sometimes GPS, sometimes Bluetooth—to track the movements of infected people and enforce quarantine ordersChina, Taiwan, Israel, and South Korea are among the most active in this regard. In IsraelFrance, and China governments are also using drones to ensure people with COVID-19 are complying with stay-at-home orders. Finally, in Australia, the government is collaborating with a private party to develop a contact-tracing phone application.

The Fourth Amendment requires that government searches be reasonable. This means that you first ask whether an act of government information collection was a “search” (not everything is) and then, second, whether the search was a reasonable one. Warrantless searches are typically unreasonable when undertaken by law enforcement officials to discover evidence of criminal wrongdoing.

Outside the law enforcement context, things are different. Courts assume that it is less problematic and less intrusive to conduct surveillance when the goal is not criminal law enforcement. Rather than immediately imposing a warrant requirement, therefore, courts conduct a reasonableness balancing analysis that weighs the intrusiveness of the search against the expected government benefits of that search. We have seen this analysis employed in the public health context before. In Whalen v. Roe, the Supreme Court held that a state law requiring the state’s health department to collect and keep, but not publicly disclose, patient prescription drug information did not amount to a constitutional privacy violation. The law was plainly useful in accomplishing the state’s legitimate goal of controlling the distribution of dangerous prescription drugs, and the Court thought the risk to patient privacy was minimal given the safeguards in place. Given Whalen, states and local governments might be able to collect COVID-19-infected patients’ information and share it with public health or law enforcement officials, or even private companies aiding in public health efforts, without violating any privacy rights. Warrantless intrusive government data surveillance has been upheld as well in the education and government employment contexts in part on the grounds that those domains are different than law enforcement.

Given the differences in how the law treats public expectations of privacy in the law enforcement versus the public health contexts, we set out to test whether and to what extent these differences affect how people view surveillance on a real public health issue. Are people less concerned about surveillance when it is aimed at fighting a pandemic? We fielded a census-representative survey of almost 1,200 Americans to measure public attitudes towards the use of surveillance under three different conditions: (1) law enforcement collecting information for traditional crime-fighting purposes, (2) law enforcement collecting information to ensure compliance with COVID-19 stay-at-home orders, and (3) public health officials collecting information to track COVID-19 infections. Participants were randomly assigned one of the conditions and asked how intrusive they considered various potential searches. The searches were always the same, only the context changed. Data were collected on April 9th, 10th, and 13th. On those three days, a total of 5,471 American deaths were attributed to COVID-19.

Perceived Intrusiveness of Forms of Government Surveillance by Purpose

Note: Scores measured on an intrusiveness scale ranging from 0–100. Error bars represent 95% confidence interval.

The survey results surprised us. For six of the seven cases, people were significantly more concerned about surveillance when it was directed at tracking the spread of a pandemic than when used for traditional crime control. This was consistent across three separate measures. The pandemic-related searches were seen as (1) more intrusive and (2) as greater violations of expectations of privacy. People were also more likely to say (3) that government should need a court order or warrant to get the information. For simplicity, we display only the intrusiveness data in the figure.

There are many potential reasons for these results. For one, there is a novelty factor. Whether you like the police or not, we know who they are and what they do when they are engaged in traditional crime control. The idea of public health officials suddenly tracking us, or police enforcing new and pervasive stay-at-home orders, may just be something we are not used to.

For another, the pandemic monitoring scenarios may also imply a more universal form of surveillance. Most often people think of crime-fighting surveillance as directed at people other than themselves. But when it comes to pandemic surveillance, we are all fair targets and privacy violations loom larger when they are directed at you personally. Think of the controversy over the NSA-phone metadata program, which also gathered data on all Americans. Maybe pandemic surveillance just hits too close to home.

Whatever the explanation, our data are striking, and policymakers should consider them when granting enforcement powers. Despite the depths of this crisis, people still found COVID-19 surveillance to be more intrusive than surveillance aimed at general crime control and worthy of greater regulation. At the very least, we should respond to these public privacy concerns by constructing safeguards that limit the uses of pandemic surveillance data and explaining to the public just how we plan to use these data during this new normal. Internationally, we have already seen some movement in this direction. Last Sunday, the Israeli Supreme Court ruled that parliament must pass legislation authorizing and limiting COVID-19 surveillance if it wanted to continue monitoring cellphone locations.

Matthew B. Kugler is an Associate Professor of Law at Northwestern Pritzker School of Law. Mariana Oliver is a JD-PhD candidate in Sociology.