Advocacy letter

Call for the Protection of Democracy and Privacy as Tech Responds to Pandemic

Organizations urge for the protection of civil rights and privacy amidst COVID-19 response technology.

June 11, 2020

The Honorable Frank Pallone, Jr., Chair
House Committee on Energy & Commerce
2125 Rayburn House Office Building
Washington, DC 20515

The Honorable Greg Walden,
Ranking Member
House Committee on Energy & Commerce
2125 Rayburn House Office Building
Washington, DC 20515

 

The Honorable Jan Schakowsky, Chair
Subcommittee on Consumer Protection
& Commerce
House Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515

 

The Honorable Cathy McMorris Rodgers, Ranking Member
Subcommittee on Consumer Protection
& Commerce
House Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515

Dear Representatives Pallone, Walden, Schakowsky, and McMorris Rodgers:

         The undersigned civil rights, civil liberties, civil society, and consumer protection organizations endorse the following principles to protect the civil rights and privacy of all persons, especially those populations who are at high risk for the virus and communities of color, when considering the deployment of technological measures in response to the COVID-19 crisis.

Both the health and economic effects of COVID-19 disproportionately impact people from historically disadvantaged communities, including Native Americans, African Americans, Hispanics, as well as Native Hawaiians and Pacific Islanders. People with disabilities have also faced devastating obstacles as a result of this virus. As a consequence of historical systemic discrimination and related policy choices, people of color today are more likely to be essential workers without paid sick leave, more likely to live in densely populated areas or living quarters, less likely to have health insurance or access to healthcare, and more likely to suffer from inequities in the healthcare system, resulting in a disproportionate impact of the disease on these communities.

As employers, policymakers, businesses, and public health authorities consider strategies to reopen American society, they must not harm communities of color and people with disabilities already suffering disproportionately from the virus and economic hardships. They must avoid improperly deploying information technologies designed specifically to monitor, track, or trace individuals in order to mitigate, or respond to the COVID-19 public health crisis (hereinafter “COVID-19 response technologies”). Digital tools should be implemented only to augment, and not to replace traditional manual contact tracing. Moreover, neither manual tracing nor digital tools will be effective without widely available COVID-19 testing, supported isolation, partnerships with vulnerable communities, and other supportive public health measures, such as equitable access to healthcare. 

No COVID-19 response technology has been proven trustworthy and effective for combating the pandemic in the United States. Use of such technology must only be allowed if it is non-discriminatory, effective, voluntary, secure, accountable, and used exclusively for public health purposes.

Non-Discrimination

Collection of data for COVID-19 response should focus on the information that public health authorities need to combat the pandemic. To the extent that any collection and use of data involves protected characteristics, such as race or gender, it must be narrowly tailored to the compelling public interest of tracking, studying, and treating COVID-19. Government surveillance disproportionately targets and affects marginalized communities, contributing to the inequities they face from the use of big data. COVID-19 response technologies should neither add to these inequities nor be used to discriminate in employment, housing, credit, education, insurance, healthcare, public accommodations, or public benefits. In addition, under no circumstances should anyone be able to use COVID-19-related data to deny or restrict the right to vote.

Exclusive Public Health Purpose 

COVID-19 response technologies need to be trusted to be successful. To build that trust, these programs must minimize the data they collect to only that which is necessary for public health purposes, prohibit any other uses unrelated to public health, and promptly destroy data when it is no longer necessary to serve a public health-related purpose. Furthermore, just like Census data, data collected to protect public health should not be shared with law enforcement or immigration authorities. The only government entities with access to COVID-19 health and location data should be public health authorities and researchers. Use of COVID-19 response technologies should sunset once the public health emergency ends so that they cannot be repurposed.

Effectiveness

Developers of COVID-19 response technologies should design their tools to meet the actual needs of public health authorities, and test and self-certify that their products are safe and effective prior to widespread deployment. No one should use such a tool if public health experts deem it ineffective. After deployment, the technologies and programs should be regularly assessed by independent auditors to ensure they maintain the highest level of data security, protect privacy, and function as intended. Continued deployment of COVID-19 response technologies must be dependent on proving effectiveness.

Voluntariness

Public health officials stress that technological approaches to addressing the pandemic only work if they are trusted and voluntary. In general, any COVID-19 response technology must be used with informed, express consent, which an individual can revoke at any time. Outside of limited medical applications defined by orders from public health authorities, employers, businesses, and government agencies should not be allowed to compel use of COVID-19 response technology or retaliate against those who choose not to participate.

Security

The technologies under consideration may collect extremely personal and private health information about health, location, and associations. Entities deploying this technology must implement cybersecurity and data security practices that comply with recognized best practices, provide data access only to public health entities who need it for public health purposes, and protect data integrity. Moreover, if a government uses a COVID-19 response technology to assist with digital contact tracing or exposure notification, it should be built with open source code so that security, privacy, and civil rights experts can identify and report any issues. 

Accountability

All use of COVID-19 response technologies requires oversight, transparency, and accountability. This means that proposals to regulate these technologies should provide for clear and comprehensive privacy policies, routine public reporting, enforcement of violations by federal and state authorities, and a private right of action for those whose rights are violated. Marginalized communities historically have not been able to rely upon the government to protect their interests, so individuals must be empowered to safeguard their rights through other avenues.

In this time of global emergency, it is heartening to see so many people coming forward to share ideas and resources to help those in need and prevent further suffering. However, we must also be mindful of the risks of overreach and unintended consequences, especially to marginalized communities already suffering disproportionately from the virus and economic hardships. 

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent,” Justice Brandeis wrote. “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Public health expertise and scientific rigor is necessary to save lives; thoughtful consideration of equity and civil rights is necessary to safeguard them.

Sincerely,

Access Now

Alianza Nacional de Campesinas

American Atheists

American Federation of Teachers

American-Arab Anti-Discrimination Committee (ADC)

Americans for Financial Reform

Amnesty International - USA

Arab American Institute

Asian & Pacific Islander American Health Forum

Asian Americans Advancing Justice | AAJC

Association of Asian Pacific Community Health Organizations (AAPCHO)

Augustus F. Hawkins Foundation

Autistic Self Advocacy Network

Campesinos Sin Fronteras

Center for American Progress

Center for Democracy and Technology

Center for Digital Democracy

Center for Science and Democracy, Union of Concerned Scientists

Center on Privacy & Technology at Georgetown Law

Common Cause

Constitutional Alliance

Consumer Action

Consumer Federation of America

Customer Commons

Democracy 21

Economic Policy Institute

Electronic Frontier Foundation

The Electronic Privacy Information Center (EPIC)

ELEVATE AAPI @ Irvine Valley College

Equal Rights Advocates

Equality California

Farmworker Association of Florida

Filipina Women's Network

Free Press Action

Freedom House

Government Accountability Project

Government Information Watch

Human Rights Campaign

Impact Fund

Japanese American Citizens League

Justice for Migrant Women

Justice in Aging

Lawyers' Committee for Civil Rights Under Law

League of Women Voters of the United States

Matthew Shepard Foundation

Media Alliance

MediaJustice

Multicultural Efforts to end Sexual Assault (MESA)

Muslim Advocates

NAACP

National Action Network

National Alliance for Partnerships in Equity (NAPE)

National Black Justice Coalition

National Center for Lesbian Rights

National Consumer Law Center, on behalf of its low-income clients

National Council of Jewish Women

National Education Association

National Employment Law Project

National Employment Lawyers Association

National Health Law Program

National Hispanic Media Coalition

National Indian Education Association

National Network to End Domestic Violence

National Partnership for Women & Families

National Queer Asian Pacific Islander Alliance (NQAPIA)

National Urban League

New America's Open Technology Institute

Oakland Privacy

OCA-Asian Pacific American Advocates

Open MIC (Open Media & Information Companies Initiative)

Pacific Islander Health Partnership

Prison Policy Initiative

Public Citizen

Public Knowledge

Ranking Digital Rights

Restore The Fourth, Inc.

Silver State Equality-Nevada

South Asian Network

The Leadership Conference on Civil and Human Rights

UnidosUS

Union for Reform Judaism

United Church of Christ, OC Inc.

Workplace Fairness