Commentary: The Administrative State Can Put a Bug in Your Phone

by Debra J. Saunders


In the age of cellphones and the internet, consumers often face a simple choice: convenience or privacy? Do we let Big Tech have access to our private communications and free email accounts because it’s so easy?

Once you’ve said yes — and who among us has not? — it’s not a stretch to think that Big Data already has almost all your information, so why get picky at the next juncture?

Add COVID to the mix, and — presto — there’s a health component as well. Big Tech can use contact-tracing apps to monitor contacts with COVID-positive individuals.

Which opens the door to a role for Big Government.

This story begins in mid-June 2021, when, disappointed that too few residents voluntarily installed a COVID contact-tracing app, Massachusetts began working with Google to secretly install the app in more than one million Android mobile phones or devices.

Most people didn’t know that their whereabouts were being tracked and didn’t have an opportunity to opt out because they can gain access to the app only through a “settings” backdoor.

The New Civil Liberties Alliance filed a class-action lawsuit this month against the Massachusetts Department of Public Health to end the “spyware” program with its “brazen disregard for civil liberties.” The group is seeking nominal damages — $1, plus legal fees and expenses — as well as declarations as to the constitutional violations inherent in the program.

Stanford epidemiologist Jay Bhattacharya warned that contact-tracing technology can be problematic because it’s “very difficult” to figure out who gave COVID to you. While many health professionals were “enamored” with contact tracing, Bhattacharya added, time delays also diminished the method’s efficacy.

Fun fact: Massachusetts ended its contact-tracing program in December 2021.

“I don’t think this app is giving them anything,” NCLA litigation counsel Sheng Li told me, especially since the Commonwealth shut down the program.

“I do just hope that this lawsuit may be a wake-up call,” Sheng added.

Massachusetts officials declined my requests for comment.

I can see why. The Bay State set up a program that gave the government access to citizens’ whereabouts without having to obtain a warrant — you know, that old-school document that relies on probable cause to safeguard against unreasonable searches.

When users try to delete the app, the app nonetheless reappears, according to numerous consumer complaints. Thus, the app robs users not only of an expectation of privacy but also of data usage they did not anticipate. Sheng called that a “taking” — the government seizing property without compensation.

I started out this exercise presuming good faith — that health care professionals and tech companies wanted to do the right thing and prevent the spread of COVID. They got carried away and trampled on citizens’ constitutional rights, but then, many mistakes were made in the heat of COVID panic.

Almost a year since the program ended, for some reason, the spyware remains in the devices of unwitting consumers. So the good will isn’t looking so good right now.

But really, as a happy American, I wonder, how bad can it actually get?

Sheng has an answer for that. An immigrant who left China as a kid, Sheng noted that Beijing is working “hand in hand with Big Tech” — tracking citizen whereabouts and shutting down cities or districts where COVID is found. “They know exactly where every one of their citizens is going,” he said, and what they are doing.

In a technocracy, freedom is not a priority. Neither is privacy.

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Debra J. Saunders is a fellow at the Discovery Institute’s Chapman Center for Citizen Leadership. Contact her at [email protected]COPYRIGHT 2022 CREATORS.COM.
Photo “Phone” by PhotoMIX Company.




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