But What if Big Brother's Surveillance Saves Lives?- Comparative Digital Privacy in the Time of Coronavirus

• Publication year: 2022

54 Creighton L. Rev. 147. BUT WHAT IF BIG BROTHER'S SURVEILLANCE SAVES LIVES?- COMPARATIVE DIGITAL PRIVACY IN THE TIME OF CORONAVIRUS

BUT WHAT IF BIG BROTHER'S SURVEILLANCE SAVES LIVES?- COMPARATIVE DIGITAL PRIVACY IN THE TIME OF CORONAVIRUS ^[*]

APRIL XIAOYI XU ^[D1]

"Big Brother Is Watching You."

-George Orwell,1984 ^[1]

I. INTRODUCTION AND CONTEXT: CURTAILING DIGITAL PRIVACY RIGHTS AS A NECESSARY EVIL TO END THE DYSTOPIAN NEW NORMAL UNDER THE COVID-19 REGIME .................. 148

II. HOW BIG BROTHER USES DIGITAL DATA TO COMBAT COVID-19: A TYPOLOGY ................ 152

A. INTRODUCING THREE MAIN MODELS . . . AND BEYOND ......................................... 152

B. THE PICTURE AT LARGE: BIG BROTHER'S HELPERS AND THOSE VOLUNTARILY SUCCUMBING TO HIS WATCH ................................... 157

III. ZOOMING IN ON DIGITAL PRIVACY LAW IN THE TIME OF CORONAVIRUS ..................... 160

A. AN OVERVIEW OF THE LEGAL LANDSCAPE RELEVANT TO THE COVID-19 CONTEXT ........... 160

1. The European Approach to Digital Privacy Governance .................................. 160

2. The United States Approach to Digital Privacy Governance .......................... 162

B. APPLYING PRIVACY-RELATED LEGAL CONCERNS TO BIG BROTHER'S DIGITAL SURVEILLANCE STRATEGIES ...................................... 164

1. Flow Modeling Using Aggregated, Anonymized Data ............................ 164

2. The Cellphone Tracking Methods: Quarantine Enforcement and Contact Tracing ..................................... 166

IV. COUNTERING THE NOVEL CORONAVIRUS, AND BEYOND: SYNTHESIS AND LOOKING AHEAD ............................................ 170

I. INTRODUCTION AND CONTEXT: CURTAILING DIGITAL PRIVACY RIGHTS AS A NECESSARY EVIL TO END THE DYSTOPIAN NEW NORMAL UNDER THE COVID-19 REGIME

By April 2020, a significant portion of students from across the globe were taking classes online instead of learning with their friends at school. ^[2] Most working-age adults found themselves at home, many unemployed. ^[3] Everyone worried every day about the safety and health-the most fundamental needs-of loved ones. Across public spaces, "no entry" signs and posters reminded individuals to stay six feet away from each other to strictly enforce social distancing at all times. ^[4] Bustling restaurants and bars were ordered to shut down, save for a few diligent takeout and delivery locations. ^[5] Streets were virtually empty. ^[6] Travel was effectively out of question, as were weddings, honeymoons, Easter get-togethers, and graduation ceremonies. ^[7]

As dystopian as these portraits of society may sound, they were, in one way or the other, the new normal as the world confronted a new common enemy in 2020: the novel coronavirus, "COVID-19." ^[8] Although these curtailments to one's civil liberties appeared extreme and the social changes were drastic, ^[9] especially in liberal democracies such as the United States, new policies and laws imposed by governments worldwide in response to COVID-19 became the necessary evil to mitigate the consequences of the pandemic and to rid the world of this highly contagious and fatal virus as promptly as possible. ^[10]

Disease models from epidemiologists including Marc Lipsitch, professor of epidemiology and director of the Center for Communicable Disease Dynamics at Harvard Medical School, demonstrate that intermittent periods of social distancing may be the best option to control the COVID-19 pandemic, for this "on-again, off-again approach" would "protect hospitals from being overwhelmed with sick patients, buy them time to gather adequate medical supplies, and allow the population to slowly gain immunity." ^[11] In the absence of an effective vaccine and antiviral drugs, governments need to modulate the trajectory of the epidemic "so that the impact on global health is minimized and each epidemic wave does not exceed []healthcare system capabilities." ^[12]

On a macro level, to slow and contain the spread of COVID-19, governments should have at least three policy and legal objectives in regulating social behaviors while supporting scientific experts with relevant research to the extent possible. Firstly, authorities need to ensure that as many people as possible stay self-isolated at home and practice social distancing if they absolutely need to exit their homes for essential goods or other urgent needs. ^[13] The less contact there is among the population, the easier and faster it is for the virus to die down. ^[14] Secondly, for those who have tested positive for coronavirus, governments need to speedily identify individuals who could have gotten COVID-19 from the diagnosed coronavirus carriers due to recent close contact, and begin testing and quarantining those individuals accordingly. ^[15] Thirdly and equally importantly, leaders around the world need to prioritize protecting the most vulnerable members of society: the elderly, the homeless, the poor, and those with serious existing medical conditions; in countries with one or multiple epicenter(s) of coronavirus, those locations also merit particular attention. ^[16]

Among the sacrifices individuals have had to make in order for governments to accomplish these goals, a central tradeoff that citizens in various jurisdictions have experienced is one between individuals' digital privacy and public safety. At least theoretically, one may readily see ways in which taking advantage of technological advances to monitor individuals' compliance with the newly-launched Orwellian laws and policies can make the process more seamless and efficient. Significantly, while big data has proven to be "immensely useful in fields such as marketing and earth sciences," the public health space has yet to see the fruits of a big data revolution. ^[17] Instead of relying on recent technological advances, public health-at least up until the outbreak of the COVID-19 global pandemic-had been relying principally on traditional surveillance systems. ^[18] Based on various nations' digital technologies and data sharing strategies to resolve the COVID-19 crisis so far, one may find it likely that COVID-19 is driving major social change in an area that is integral to a healthy society worldwide.

As of early-April 2020, there have been three main ways of collecting and using digital data in order to accomplish the aforementioned goals. ^[19] First, mobile location data can provide governments with advanced tracking capabilities to help authorities enforce quarantines. ^[20] Second, facial recognition technology linked with biometric databases is being integrated with digital thermometers to help capture the identity of individuals with coronavirus symptoms, including, notably, a fever. ^[21] Third, open-source applications such as Nextstrain are using Gisaid, a platform for sharing genomic data, to help researchers track and study the evolution of coronavirus. ^[22] This Essay focuses primarily on the first of these methods. ^[23] Section II of this Essay surveys the main ways in which governments have applied digital technologies and data sharing models to combat COVID-19, with case studies and a closer examination of the key stakeholders involved throughout the process. Section III of this Essay zooms in on the legal questions involved in this pandemic from a comparative digital privacy law angle. Section IV concludes this Essay on a forward-looking note, extending an open invitation for further research on this fast-evolving situation.

II. HOW BIG BROTHER USES DIGITAL DATA TO COMBAT COVID-19: A TYPOLOGY

A. INTRODUCING THREE MAIN MODELS . . . AND BEYOND

As of early-April 2020, there have generally been three main ways in which governments have applied digital technologies and data sharing models to achieve the aforementioned goals in putting an end to the novel coronavirus: self-quarantine enforcement, contact tracing, and flow modeling using aggregated, anonymized data. ^[24] Some countries use a combination of these approaches. For instance, Singapore, which has widely been considered one of the most successful nations in managing the COVID-19 crisis, uses digital data both for quarantine enforcement and contact tracing. ^[25]

First, multiple jurisdictions have used cellphone location data of specific users to ensure that self-quarantine rules have been properly respected by individual members of society. ^[26] This approach serves to enforce the aforementioned social distancing and quarantine policies. ^[27] The Hong Kong government, for example, used location data to track residents' movement during its lockdown period to ensure that everyone stayed in his or her quarantine locations if asked to be quarantined. ^[28] Starting on March 19, when Hong Kong ordered all arriving passengers to be quarantined for two weeks in order to prevent further spread of COVID-19, the government began mandating the use of an electronic wristband, accompanied by a smartphone app, in an effort to enforce the self-quarantine measures. ^[29]

In Taiwan and India, there have been similar measures where cellphone tracking is used "to warn those self-quarantining that they have travelled too far from home." ^[30] In Poland, the government launched "Home quarantine," a smartphone application for citizens returning from abroad who have been required to self-isolate for two weeks. ^[31] The app uses geolocation and facial recognition technologies: users first...