Khushi Sharma and Aarushi Kapoor
The Coronavirus outbreak has been devastating to the extent of raising the fears of superpowers like the US which, despite being the claimant of an extremely developed health infrastructure in the world, is experimenting novel methods to put up a tough fight against COVID-19. Belonging to the genus of severe acute respiratory syndrome (SARS), it has claimed up to 19,755 lives so far, with 600 and counting from America itself. With the Trump administration being caught in a central dilemma, it endeavours to engage in a series of interactions between the White House and the Silicon Valley giants to adumbrate responses to this corona pandemic via the expansion of virtual education and telehealth, accompanied with a check on the spread of misinformation about the crisis and exploring the use of geolocation for disease tracking.
Recently, the Trump administration proposed to track location data from cell phones of Americans’ to track the spread of the devastating virus and is in discussions with companies like Google and Facebook for the same. As per the news, the State Department has also received requests from various foreign countries to establish a connection with tech companies to track the movement of billions of people worldwide.[i] As till now, the Trump government has asked for generalized location insights which for example includes, tracking the traffic movements, store visits by the American people. However, the experts fear that, the government gaining access to this data which can reveal intimate details about the citizens, will attract legal and ethical complexities, even amid a global pandemic. Further, there is a confusion as to the extent to which data will be tapped upon. It raises the fear of being spied by the government by its intrusion into their (citizens’) privacy and its related concerns like their social networks, religious inclination, sexuality, political disposition and physical movements. Further, the conundrum prevails over the granularity of the information, the administration is seeking for, which could prove to be a tool in the hands of the government once the health crisis has waned off.
The world is at war, with every single life battling for survival. However, at no cost can there be a wholesome invasion of privacy. There should be a balance between the health crisis and privacy. However, in the times when privacy has been recognised as a fundamental right in the UN Declaration of Human Rights,[ii] and the International Covenant on Civil and Political Rights[iii] and by many other international treaties and domestic laws of most the states, the United States stands aloof, in absentia of any explicit mention of such right in its Constitution.
The limited interpretation to the right of privacy in the United States is the consequence of the subsequent amendments to the constitution (1st to 9th) and judicial pronouncements. It was in the case of Griswold v. Connecticut[iv], that the Supreme Court expressed the implied right of privacy which was embedded in the First[v], Third[vi], Fourth[vii], Fifth[viii] and Ninth[ix] constitutional Amendments. Justice Louis Brandeis advocated the importance of “right to be left alone”, followed by the prolific judgments of Eisenstadt v Baird[x] (1971), Roe v. Wade[xi] (1972), and Lawrence v. Texas[xii] (2003). These cases attributed their origin to the Fourteenth Amendment.
The American Constitution is inept to the extent that it offers fragile safeguards to protect the implied right to privacy as inherent in the Fourth Amendment. This amendment secures a person from unreasonable searches and seizures of the property and arbitrary arrests by the government, except upon the issuance of a warrant on a probable cause supported by oath or affirmation. Such issuance of warrant in criminal investigations should be aided by an evidence and must not fall a prey to an arbitrary and colourable exercise of power. Hence there lies the irony, wherein the implied right of privacy which is associated with human dignity has probably no safeguard except for the mechanisms incorporated in the Fourth Amendment in the US Constitution. Therefore, the government has unbridled powers to intrude into the ‘privacy zone’ of any citizen coupled with an immunity to escape the test of unconstitutionality.
At the times of such health crisis, the Trump administration has declared an emergency as a response to control the spread. Amidst such crisis, declaration of emergency broadens the otherwise unleashed and unchecked powers of the executive, with they having the authority to do everything the Constitution restricted them. Therefore, the U.S. government has a broad authority to request personal data of its citizens in the grab of sensitive circumstances.
Even though the U.S. government, by such unfair action plans, does nothing unconstitutional under its own law, it amounts to a departure from the international standing on the right to privacy. Even though this right isn’t absolute and can be invaded for securing larger public interests, public morality and security of all, an interference in privacy must correspond to a pressing social need.[xiii] The crisis which dwells on this earth for the time being is enough to constitute a pressing social need. What must be taken into accord is the amount of intrusions must always be proportionate to the wrong needed to be rectified.[xiv] The course of action embraced by the government to combat the spread of coronavirus, particularly involving personal data to track the movements, is likely to be legally justified, if implemented with apt safeguards and with due consideration and observance of rule of law. These apt safeguards seem to be in abeyance, since there are no legal controls on how the federal government might use the data once it has been collected.
Many public-health experts claim, however, the plethora of examples as to how this technology is being tapped overseas. In South Korea, the government has directed the quarantined and effected people to install the Self-Quarantine Safety Protection app, which would monitor their location and update the authorities if they leave home. They serve as critical tools for the officials who are wanting to know if the crowd violated social distancing. Even China has developed the applications, by the means of which it could track the citizens’ whereabouts. Such applications are similar to Google maps and hence display the locations visited by the affected people so as to warn the general public to avoid such places.
Such measures amount to a reasonable infringement of privacy. However, what the Trump government seeks to propose amounts to a blatant transgression of rudimentary law of privacy, wherein the extent up to which it could be intruded into, in the name of state interest, is a debatable issue. America is a global force in itself, cannot afford to develop such action plans, which disturbs the balance between such health crisis management and privacy rights of the countrymen. With the entire country being brought to a halt, and all the movements down the lanes being curtailed, such a step is likely to complicate the privacy concerns. This course of action, if implemented just for the affected class of citizens will be a beneficial move and would be proportionate to the amount of exigencies prevailing. With doldrums prevailing over how granular information is being sought, experts fear unnecessary intrusion and violation of privacy concerns of the general folks.
[i] Brian Fung, Trump administration wants to use Americans’ location data to track the coronavirus, CNN Business, (March 18, 2020), https://edition.cnn.com/2020/03/18/tech/us-government-location-data-coronavirus/index.html.
[ii] G.A. Res. 217 A, Universal Declaration of Human Rights, Art. 12, (Dec. 10, 1948).
[iii] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, Art.17, (Dec. 16,1966).
[iv] 381 U.S. 479 (1965).
[v] U.S. Consti. amend. I.
[vi] U.S. Consti. amend. III.
[vii] U.S. Consti. amend. IV.
[viii] U.S. Consti. amend. V.
[ix] U.S. Consti. amend. IX.
[x] 405 U.S. 438 (1972).
[xi] 410 U.S. 113 (1973).
[xii] 539 U.S. 558 (2003).
[xiii] G.A. Res. 217 A, Universal Declaration of Human Rights, Art. 29(2), (Dec. 10, 1948).
[xiv] Olson v. Sweden, 24 March 1988, 11 EHRR 259, para. 67.
The authors are students of HNLU Raipur
Image: goldenfrog.com
Constitutional Law Society 