Mar 23 2020

In a pandemic, freedom is the first casualty

We’ve seen before — notably after September 11, 2001 — how a crisis can result in damage to rights and freedoms that persists long after the initial cause of public panic.

Some advocates for restrictions on individuals and our movements and activities will exploit any crisis to ratchet the mechanisms of surveillance and control tighter.

Other officials, including many who mean well but are too traumatized to recognize the long-term consequences of their short-term actions, will advocate “temporary” restrictions on individual rights and freedoms that almost inevitably become permanent.

We don’t yet know what the cost in lost lives of the coronavirus pandemic will be. But we can already see the outlines of some of its potential cost in lost civil liberties.

Earlier in the pandemic, we reminded our readers of the risks of abuse of overbroad quarantine powers. But that’s only one aspect of the problem.

The basic methodology of control of travel and movement is that compulsory identification of travelers enables surveillance (tracking and logging) of travel and movement histories, and control of future movements based on individuals’ identities and the histories and other databases of personal information linked to those identities.

Already, changes to policies and practices related to (1) identification, (2) surveillance, and (3) control of travelers have all been proposed in response to the coronavirus pandemic:

1. Identification

In order to track people, you first have to identify them. A national ID database is critical to national surveillance and tracking of individuals and our movements. No such database currently exists, but the REAL-ID Act of 2005 and threats to (illegally) harass travelers from states that don’t comply with its “voluntary” provisions are being used to intimidate state governments into participating in the aggregated SPEXS national ID database outsourced to the American Association of Motor Vehicle Administrators (AAMVA).

Even before the coronavirus outbreak, the travel industry was lobbying Congress to amend the REAL-ID Act of 2005 to avoid the possibility that air travelers with “noncompliant” state-issued drivers licenses or ID cards might be (illegally) turned back at TSA and contractor checkpoints at airports.

This travel industry lobbying has been stepped up and joined by state governments and some members of Congress as the pandemic spreads.

On March 16, the Chairs of the House Committees on Transportation and Homeland Security issued a joint statement calling on the DHS to postpone the deadline for enforcement of the REAL-ID Act with respect to air travel. (The DHS could do this because the “deadline” was set by DHS press release rather than by rulemaking or statute.) The next day, March 17, the National Governors’ Association has sent a letter to Congress calling for postponement of the DHS deadline for enforcement of the REAL-ID Act. Also on March 17, Sen. Steve Daines of Montana introduced S. 3504, a bill to postpone the REAL-ID Act “deadline” for air travel.

The problem with all of these proposals is that, like those we reported on last month, they only postpone the problem. None of them would do anything to end DHS extortion of state governments,  DHS threats to harass or interfere with the rights of travelers, or the expansion of the SPEXS national ID database.

What’s needed to stop this national ID system isn’t yet another delay by the DHS in carrying out its illegal threats. What’s needed, without delay, is repeal of the REAL-ID Act.

2. Surveillance

A variety of old and new surveillance technologies — first and foremost cellphone location tracking  and automated facial recognition using cameras in public places — are already in use in other countries and being proposed for use in the US for “contact tracing” of people infected or exposed to the SARS-CoV-2 virus and the COVID-19 illness it produces.

Starting this week, for example, 2,000 workers at San Francisco General Hospital and the UCSF Medical Center — both of which are operated by government agencies — have begun  wearing off-the-shelf Internet-connected tracking rings. originally marketed with a commercial “fitness” app, these rings monitor and transmit temperature and location 24/7, even while wearers are sleeping (i.e. identifying, among other things, who sleeps with whom and whether they engage in activities that raise their body temperatures).

Disturbingly, but probably typically, there’s no mention in the initial report of this test in the San Francisco Chronicle as to what, if any, policies or practical controls apply to use of the data from these tracking rings by the commercial partner, the medical centers, and/or other government agencies or third parties.

As we’ve seen in the recent about-face by the Seattle Port Commission on facial recognition at Sea-Tac Airport, it’s essential for rules (including enforcement mechanisms) for use of data to be put in place before decisions are made about whether to deploy automated identification or other surveillance and tracking systems. Privacy policies adopted after the fact are likely to be written to allow whatever is already being done.

The best way to control abuse of data, of course, is a “do not collect” policy.

3. Control

As we’ve noted before in relation to quarantine regulations, a key issue in how  government agencies (and/or private entities deputized and delegated de jure or de facto authority to act on their behalf) wield their power is the provision of due process of law.

Will decisions be made by black-box pre-crime (or now perhaps “pre-infection”) algorithms? Or will evidence, including evidence obtained through automated identification and movement tracking, be assessed by neutral judicial decision-makers acting in accordance with normal Constitutional procedures?

According to a report this week in Politico based on leaked Department of Justice documents, the DoJ has suggested changes to Federal law that would authorize the Chief Judge of each federal judicial district to suspend any rules of criminal  or civil procedure for the duration of any “national emergency”.

Rules of procedure may seem of secondary importance compared to  “substantive” rights. But in the real world, procedural rules often detemine the outcome of legal proceedings. Let your opponent in an adverseral process make the rules, and you’ll lose every time. Without procedural due process, there are no enforceable civil liberties or human rights.

4 thoughts on “In a pandemic, freedom is the first casualty

  1. Trump is as bad as the rest going back to Nixon
    The timing though gives Trump up to date evil/

    He will have his agencies, such DOJ, making Policy, so as to bypass Congress and Senate to make laws.

    This will begin in April.

    Now during Global lockdown, covert actions have been taking place right in your town.

    The two shots ahead…..BEWARE.

  2. “A national ID database is critical to national surveillance and tracking of individuals and our movements.”

    National ID was considered in World War 2 as well. The explicitly stated purpose was “control of civilian population movement,” whether by forcing someone to move against his will, or by denying him the right to move where he wants.

    From Margo Anderson, “Public Management of Big Data: Historical Lessons from the 1940s”:

    [A]s the evacuation of the Japanese ancestry population moved to full implementation in late spring 1942, with calls to build additional wartime population surveillance and control instruments… Officials at the Western Defense Command in San Francisco and some census officials were so pleased with their new initiatives using census data for the war effort, that they commissioned a study to propose a full-scale population registration system “for military and civilian” purposes…

    [The study covered] a range of identity, administrative, and statistical functions that could be accomplished by different sorts of population registration systems, including instituting a universal civilian identity card. [The study] also included a discussion of the “political and psychological dangers” of such an identity system. “Traditional American thinking regarding freedom of action and thought,” [Forrest Linder] warned, “might consider a mandatory identification register as an infringement of that liberty and the beginning of an American ‘gestapo.’ The political implications or effects of a compulsory identity registration might be considerable, unless a substantial part of the public clearly saw the necessity for it. Also, the possibilities of ‘blacklist’ inherent in an identification system are certain to arouse the opposition of labor groups.”

    [I]n a November 1942 “Explanation of a National Registration System Adaptation for War Purposes,” question six asked, “Will the National Registration System assist in the control of civilian population movement such as the removal of the Japanese from restricted areas, the permission to enter or leave military buildings or zones, or the right of the individual to travel about the country?” The “answer” responded, “The identity number of the person can be tied to a wartime internal passport or it can be absorbed into passes for military zones or war buildings. It is the universality of the identify [sic] certificate which makes possible control over population movements. The control can be exercised to the degree which might be necessary for the war effort.”

  3. Pingback: How drivers license photos are aggregated and shared – Papers, Please!

  4. Pingback: COVID-19, the REAL-ID Act, and ID to fly – Papers, Please!

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