Many citizens are shocked to be receiving grades once again. But instead of scores from their teachers, their governor has been the one giving them grades on social distancing. Rightfully, many are now asking, “Is my state government tracking me?”
The short answer is “no,” but a full answer is more complicated and raises questions about the future of privacy.
Most governors giving out grades relied on data from Unacast, a company that collects data from third-party sources. It’s not a surprise to most smartphone users that their phone tracks their location — maps, social media, and restaurant apps often ask their users to opt in to having their location tracked so that such apps can provide them better recommendations. But many are unaware that their data might end up in the hands of other companies, let alone the government.
Concerns over what the government is doing or is willing to do, with location data are not unwarranted. Federal and state governments have long been using cellphone tracking data to place people at the scenes of crimes. Courts have wrongfully convicted people based on this data.
And even wrongful arrests based on this data can be damaging. In December 2018, Jorge Molina was arrested in Arizona on murder charges. Law enforcement stated that they knew “one hundred percent, without a doubt, that his phone was at the shooting scene.” They threw Molina in jail and kept him there for six days, a decision that cost him his job, his education, and his dignity. Only after ruining his good name did police identify another suspect and figure out that Molina had been with friends on the other side of town. Law enforcement is now facing a $1.5 million lawsuit from Molina over the incident. Actions like these only reinforce the need for states to address this issue, especially as governments are relying evermore on location data.
With many states cracking down harshly on people who go outside their homes, citizens are right to wonder if the government can use their location data to fine or even arrest them.
Thankfully, the answer seems to be “not yet.” Supreme Court precedent provides some strong protections against location tracking of individuals without a warrant. Furthermore, data provided by Unacast, Google, and Facebook, has been high-level and disaggregated, meaning it would be hard, although not impossible, to track an individual’s movements.
But just as many civil liberties disappeared after the terrorist attacks of Sept. 11, 2001, people should be jealously guarding their liberties during the COVID-19 pandemic. Other countries’ governments have made far greater use of this kind of tracking information, getting it down to the individual level. That states might do the same, especially when, at the height of their police power, is not implausible.
With a federal privacy bill still looking unlikely in the near term, state legislators must act. Unfortunately, state lawmakers’ efforts are often misguided, as they focus on what companies, rather than government, can do with consumer data.
Companies collecting data voluntarily from users does not raise the same issues as the government doing it. Companies cannot use data to fine or even arrest citizens, whereas states can. In fact, many of the voluntary programs created by technology companies may help the American economy open sooner. The real problem comes when the government either commandeers that data or collects the data itself. We should strive to be better and avoid the policies established by authoritarian governments, such as China’s heavy-handed approach.
As we can see with the ongoing examples of governments overreaching during the COVID-19 situation, it’s government that must be constrained.
Some states have already wisely taken steps to restrain government. In 2019, Utah passed a first-in-the-nation bill addressing these types of issues. The bill requires law enforcement to get a warrant to obtain certain electronic information. It also requires notification, ensuring that a person is properly informed when electronic information is requested. By strictly limiting what data the government can collect, and what it can do with the data, Utah has struck a balance to help police do their job while still protecting citizens and their constitutionally guaranteed rights.
When state legislatures return to session after the current crisis, lawmakers should ask themselves how much power they want their governor to possess when it comes to tracking individual citizens. Limiting this practice will not only be important if another pandemic situation rears its ugly head, but it will also prevent practices deployed during extraordinary circumstances from becoming commonplace.
Our constitutional rights don’t disappear in a crisis, and they certainly shouldn’t disappear afterward.
Eric Peterson is director of the Pelican Center for Technology and Innovation at the Pelican Institute in Louisiana. Follow him on Twitter @Eric_Peterson. James Czerniawski is the Technology and Innovation Policy Analyst with the Libertas Institute, a free market think tank in Utah. Follow him on Twitter @JamesCz19.
