Kim Brown: Welcome to The Real News, I’m Kim Brown. Well, we reached a point in the pandemic where state and local officials have mandated that people cannot gather in large groups, where wearing protected gear to go to the grocery store is now required. However, the government along with big technology can and likely will take further action to track the spread of the coronavirus, but at what cost to your personal liberties and to your constitutional rights and will they be eroded to such a point in which we won’t be able to recover.
Well, to join us today to talk about this more is Rachel Levinson-Waldman. Rachel is a senior counsel to the Brennan Center’s Liberty & National Security Program. She’s active on issues related to policing and technology. Looking forward to our conversation today. Rachel, thank you so much for being here.Rachel Levinson…: Thanks for having me.Kim Brown: Rachel, there’s a lot of different directions in which we can take this conversation, but I wanted to start out first discussing the announcement from Apple and Google saying that they will work closely with the federal government in order to develop a software technology to go on smart phones, sounds a lot like a tracking app, in order to determine whether or not people have become infected or come in contact with persons who have been infected with coronavirus.
And this is a method that is being employed in South Korea and in China to measurable effect where people have been able to use their cell phone data, not just people, but the federal government and public health agencies to determine contact tracing via technology. I’m curious about your thoughts, how that would look and what that would look like in a nation of over 300 million people like the United States?Rachel Levinson…: Yeah, yeah. The proposal that Google and Apple have put out is really interesting and it does share similarities with what we’re seeing in other countries, but it’s not identical. In some ways, it’s a little more similar to an app that’s being tested out in Singapore, although there’s also sort of some cautionary aspects coming from Singapore that are worth looking at.
Basically, the way this sort of program would work, what Google and Apple has said that is that they’re building a platform for other developers to build apps on top of, and it’s not quite a location tracking app. Really what it is is a proximity tracking. The idea would be that you’re out in public, you have your phone with you, right. Most people who have phone, who have smart phones are carrying them around with them, and that phone is kind of periodically beaming out a random number that the phone knows is identified with itself. But it’s not your phone number, it’s not some other kind of identifiable phone number. And when it comes in proximity to another person’s phone, your phone beams your number to that phone, that phone beams its number back, and you sort of get these little records of phones that were near each other.
Those numbers are shared into some kind of centralized database. And if some point I discover that I’ve tested positive for coronavirus or maybe that due to kind of a combination of symptoms, a healthcare provider thinks that it’s quite likely that I have coronavirus, I would upload that information into the app, and there are some differences in terms of how that could work. And that then knows, okay, this number or this series of numbers is associated with somebody who tested positive.
I’m going to upload that information into the centralized database and then all these other phones out there can check and see, “Okay, I know I’ve been in proximity to 20 different phones that have these different random phone numbers. Let’s see if any of them has recorded in that it’s associated with somebody who tested positive for coronavirus.” Then somebody on the other end knows, they don’t know who I am, they don’t know when it was, they don’t know more information then within the last, say, 14 days you have been in a certain proximity, a certain close proximity to somebody who has now tested positive.
And one of the things under discussion is what exactly would that proximity be? Is it six feet since that’s sort of been what the CDC has said that’s kind of the main like zone of danger. Would it have to be for a certain amount of time? Presumably, yes, and I think that’s one of the things that Google and Apple have talked about, right? If you walk by somebody who turns out later to have tested positive, there may be some extremely small chance, especially in enclosed space that they could have transmitted it, but it’s a fairly low risk. On the other hand, if you spent more time near somebody, so basically they’ve had more of a chance to breathe on you or to cough on you or sneeze on you in close proximity, there is then a higher risk that they would have transmitted it to you and you would want to know that information and be able to self-isolate.Kim Brown: That sounds a little off to me in the sense that I don’t know how that would work in a country like the United States where testing has been so limited, where so far we’ve only had 1% of the population be tested for coronavirus as opposed to South Korea where testing was free and widely available and a majority of the population was able to know what their status was in a relatively short amount of time.
But my question here would be, well, if I’m uploading my phone number in data up to a third-party app so to speak, who’s building a platform on Apple or Google, how long do they keep my information? If I do test positive for coronavirus, is this particular developer going to know in perpetuity or as long as I have my cell phone number that I was someone who once contacted or contracted this virus?

Rachel Levinson…: Yeah, I think those are all really good questions and I think there are sort of a few threads there to pull on. One them, the issue that you mentioned at the beginning, right, is the incredible dearth of testing in this country, right? There aren’t nearly enough tests. We aren’t doing enough tests per day. At this point, a lot of people who know or believe that they’ve contracted coronavirus basically know that because of sort of a combination of symptoms, right? But they might not have gotten a test. A healthcare provider might have said, “Okay, you have a cough, you have a fever, maybe you’ve lost your sense of smell.” We can assume you’ve gotten coronavirus, but they’re not getting additional tests.
For any kind of contact tracing, right, whether it’s as kind of electronically or technologically-driven contact tracing or the more classic kind of public health contact tracing where you find out somebody has gotten communicable disease, you’re calling people, it is all dependent on accurate and widespread and quick testing. And to your point, we don’t have that, right? I think that is one huge issue.
Then the other issue that you brought up is this question of privacy, sort of the sensitivity of data that’s going to be shared, who’s going to have access to that data. And I think those are all really important questions in terms of evaluating whether it’s the model that Apple and Google are setting out. There are a couple of other consortiums, some academics who are coming up with similar sorts of proposals. There have also been conversations about something that looks more like location tracking rather than just proximity tracking.
And for any of those, once you have some showing of effectiveness, which I think does in part depend upon testing and also enough people downloading this app, right? You have to have a pretty, pretty broad percentage of the population downloading it to have any kind of utility come out of knowing who you’re close to. They have to have the app downloaded as well, but then these questions around protections for data, right? Whom is it being shared with? How long is it being saved for and whom else is it being shared with? In general, if you do test positive, right, the health department is going to know that, right? A health care provider will report that, so it isn’t necessarily information that is going to say stay entirely private to you anyway.
This is the kind of health data that is going to be shared out in some circumstances, but that is different from, is it going to be shared with a provider? Is it going to be shared with a big tech company? Is it going to be shared with the government beyond the health department that needs to know it for public health purposes, right? Is it being shared out with law enforcement, anything else like that? And so I think those are things for which there need to be really strict guidelines in place in order to have the kind of trust, the kind of oversight, the kind of transparency you would want to see to motivate people to use this tool, to have it be effective and to not have it have sort of negative downstream consequences.

Kim Brown: I’m imagining a time when we are downloading perhaps one of these newer apps that tracks to specific information. And when you agree to the terms of service, could you possibly be agreeing to a HIPAA waiver of your healthcare information to go to a tech company? I mean that’s a little mind boggling in that train of thought.
But I wanted to ask some other questions to you, Rachel, because we’ve seen recently a lot of pushback from protestors, mostly conservatives, seemingly Trump supporters. The big one was in Michigan on Thursday in Lansing, where protesters were very vocal about wanting the state to reopen, wanting to be economy to reopen. There’s been a very uneven, haphazard approach to how each state has handled the pandemic with a number of states sheltering in place, making stay-at-home orders and other states not doing that. There’s a number of states that have not had any shelter in place orders. And from what I understand, the beaches have reopened in Florida again.
In terms of restricting people’s ability to move freely, are we seeing an overreach in what state officials, mayors, county executives, governors have been able to mandate to people to the extent it restricts them in ways in which they feel is that they have to speak out in protest?

Rachel Levinson…: Look, I am a huge proponent for civil liberties, right? The ability to protest, the ability to gather together, the rights of association, these are really core fundamental American values. We are also in the middle of a global pandemic that threatens people, threatens their livelihoods, threatens their health and safety and that of their families, threatens the ability of sort of our country and the world too keep functioning, to continue functioning.
If there were an order that said absolutely no protests under any circumstances, even if you’re standing six feet or more apart, that I would think is really problematic, right. That really feels like a pretext, a way to use the health crisis to crack down on protest. I do not have an issue with… There’ve been a variety of names, right? Whether it’s a stay-at-home order or a shelter-in-place order, we are always talking about balancing, right. You balance sort of a different equities, and often it’s with an eye towards how are we all able to sort of move forward collectively?
I think this is a circumstance under which I certainly wouldn’t want to see. There are kinds of things, there are kinds of restrictions that couldn’t be put in place in this country, right? You couldn’t say for instance, you are literally not allowed to leave your neighborhood, right? We have declared this neighborhood a quarantine area you can’t leave, right? That might be a kind of order that could be in place in other countries, couldn’t be here.
On the other hand, there could be a quarantine order, right? If you have actually personally tested positive, you could be under quarantine in order not to leave your house. And I think it’s quite reasonable given what we know about coronavirus and giving the long-lasting effects is going to have. If we don’t have measures in place now, we will not be able to gather together to associate, to protest, to rally anything like that potentially for at least a year or two down the line. I think it’s shortsighted to see this as, “Well, stay-at-home orders are kind of preventing my right to gather together with a lot of people and protest.” Because at this point, I think the health consequences of doing that are going to be far more severe.

Kim Brown: President Donald Trump tweeted recently, I believe it was Friday morning, “Defend Michigan, defend Minnesota-

Rachel Levinson…: Liberate, I think. “Liberty them.”

Kim Brown: Liberate, correct. Correct. And he made reference to defending the right to bear arms, the Second Amendment to the Constitution. Do you see any constitutional infringements happening to people who do not want a shelter in place, to people who do not want to remain at home, for people who do want to reopen their businesses? Are their rights being denied in your opinion?
I mean, we all know that in many countries, not this one necessarily because we’re not necessarily accustomed to dealing with this kind of thing, but in South Korea it appears that the population has an understanding that a lot of our personal liberties will be pushed to the side in order to make sure that public health and public safety is maintained. And Americans are not used to that, and they’re certainly not used to hearing that from their elected officials.

Rachel Levinson…: Yeah. I think this is such an interesting time. I mean, obviously, this is a country where I think people feel very strongly about individual liberties, right? The idea, whether we’re talking about First Amendment right to gather together and protest and speak, whether we’re talking about a Second Amendment right to guns, whether we’re talking about Fourth Amendment rights against the government, if we’re talking about sort of search and seizure rights, right? And this has come up a lot also in the context of a health public health emergency. Are there circumstances under which, can police come into your home, could they enforce a quarantine and what would that look like?
At the same time, I think unfortunately this is a time when some of the sort of some of the language around those rights is really being weaponized. I don’t want to say the rights themselves. I think that constitutional rights form the foundation for our country. But at the same time, I think there is a little bit less of a sense of sort of, maybe collective action in some ways. And we have seen, unfortunately, a lot of partisan misinformation and disinformation, and I think it’s a real concern at the notion of sheltering in place, of staying safe is potentially becoming a partisan issue because I think that that will potentially sort of undermine the longer term safety in terms of what those messages are.

Kim Brown: I wanted to ask you about the role of law enforcement and how police are being used at this time. We’re seeing a number of localities maximize fines for failing to social distance or for gathering in large groups. I know a number of people, there was an incident in California where people who were trying to go out and get some drinks acquired a $7,000 fine from local police there. And I feel that in advanced to this pandemic, personally, I lack the imagination of what this country could look like when it’s in the throws of a medical emergency.
In your opinion, Rachel, I mean looking forward, making a couple of assumptions maybe that the pandemic does not improve and that we see more people infected and affected, what do you see the role of law enforcement being here in trying to enforce a lot of the new regulations that elected officials have put forth?

Rachel Levinson…: Yeah. This is one of the things that I think we’re really sort of starting to see emerge. I think it’s been a big question sort of how law enforcement would play a role in this and what it would look like, right? Will there be enforcement actions against businesses that are open when sort of they’re not supposed to be, right, under a mayoral or governor’s order? Are there going to be enforcement actions against individuals? And if so, what does that going to look like, right? Is it going to be police saying to people, “Please go home” or “Please disperse.” Is it going to be imposition of fines as you mentioned? Is it going to be detention? Which just sounds like a horrible alternative because we know that detention facilities are going to be incredibly high risk for people sharing and contracting coronavirus, right. The idea of putting more people in detention facilities right now, it seems like exactly the opposite of where we would want to be.
I suspect that law enforcement is going to be called upon to enforce these orders in some ways. And I could imagine mechanisms of enforcement that might be important. For instance, things like patrolling if there’s restaurants that people are going to, if there are downtown areas that might become busy, if they’re parks, things like that, to be able to have a way to say people are gathering too close together, people need to disperse.
I think one of the real concerns, it has always been a concern, right, that we knew that policing in general has disproportionate impacts primarily on communities of color, immigrant communities, on Muslim communities. And sort of as we’re seeing more and more data come in, which isn’t really a surprise about how coronavirus is disproportionately impacting poor communities and communities of color, presumably also immigrant communities, right? Any areas where you have people where there’s sort of a density of living situation, right? People are living closely together. Maybe it’s harder to get into or out of a building or a living space without coming into contact with a lot of people.
And people who aren’t in a position to work at home, right? If your job is elsewhere and demands that you be there, you have to go to it, presumably you have to commute for it, right. That’s been a big issue in New York City in terms of people still having to gather together at subways to go into jobs. And already, a paucity of healthcare and kind of worse health care outcomes or health healthcare status from the beginning. To the extent that there are communities or neighborhoods that are harder hit already and what we know about kind of disparate policing, I think one of the real concerns is, are police then going to go predominantly to those neighborhoods to say, “Hey, it looks like there’s a lot of cases of coronavirus here, so we’re going to shift our efforts here to police people’s movements.”
I think they’re probably going to be spending more time policing the movements of people of color; and that is probably also going to have disproportionate impact. As opposed to a police cruiser sort of rolling through a more widely spread out neighborhood saying to two neighbors who are talking to each other, “Please step farther apart,” right? We know that the kind of the impact of policing or the interaction of police officers in communities of color might look a lot harsher.
And so it could lead into higher levels of arrests and detentions. It could lead to higher fines, things like that. And so I think that’s one real concern about what it’s going to look like to have law enforcement involved in enforcing. Whether it’s quarantine orders or just generally kind of social distancing and stay-at-home orders is when you get down to it, what is that enforcement actually going to look like and what’s the impact going to be on people who are hit by this, right? These are people who are already likely experiencing higher rates of stress, horror healthcare, higher rates of coronavirus. And then what does it like? What are they getting in terms of support services and what are they experiencing in terms of policing?

Kim Brown: I have a feeling that this topic is going to continue to evolve very quickly in a short amount of time. Rachel, we’re going to have to have you back on a to talk about as this thing continues to develop because I feel as if we’re not even at the midway point yet. There’s still a long ways to go.
We’ve been speaking today with Rachel Levinson-Waldman. She is senior counsel to the Brennan Center’s Liberty & National Security Program. She’s active on issues related to policing and technology. We’ve been talking about technology and the coronavirus, law enforcement and the coronavirus. A lot of times these issues overlapped and we’re going to absolutely be discussing this more. Rachel, we appreciate you taking the time to speak with us.
Thank you. Thank you so much.
And thank you for watching The Real News Network.