Pandemic Surveillance Discrimination

Abstract

The COVID-19 pandemic has laid bare the abiding tension between surveillance and privacy. Public health epidemiology has long utilized a variety of surveillance methods—such as contact tracing, quarantines, and mandatory reporting laws—to control the spread of disease during past epidemics and pandemics. Officials have typically justified the resulting intrusions on privacy as necessary for the greater public good by helping to stave off larger health crisis. The nature and scope of public health surveillance in the battle against COVID-19, however, has significantly changed with the advent of new technologies. Digital surveillance tools, often embedded in wearable technology, have greatly increased the ability of governments and private corporations to monitor large sections of society while collecting massive amounts of personally identifiable data from millions of persons around the world—often with little to no regulatory oversight (or legal limits) on how that information may be later used. Surveillance responses to public health crises have also historically, disproportionately, targeted racialized communities, leading to a normalization of both racial discrimination and inequality. The world certainly must use all means to end the devastating COVID-19 pandemic. We also need to be careful, however, to not undermine individual privacy rights or engage in racialized responses to the current crisis. This Essay examines the discord between public health surveillance and privacy rights and argues that the bio-surveillance technologies being used to respond to the COVID-19 pandemic—such as contact tracing apps, GPS ankle monitors and other wearables, the collection of cell phone location data, genomic testing, and targeted quarantines—can potentially exacerbate discrimination against racial minorities and immigrants. The Essay concludes with legal and policy solutions on how to utilize public health surveillance tools to prevent the spread of COVID-19 while guarding against privacy violations and racial bias.

Keywords: public health, COVID-19 pandemic, surveillance technologies, electronic surveillance, privacy, racial discrimination, inequality

JEL Classification: K19, K23, K29, K32, K31, K37, K4, K42