The United States is in the midst of addressing the COVID-19 pandemic. All 50 states, as well as the federal government, have now declared emergencies and issued a range of executive orders to combat the spread of the virus. While COVID-19 is a serious threat to public health, measures to address it should not become a serious threat to civil liberties. Emergency public health measures that adversely affect assembly, association, or public participation should always be based on science, appropriately tailored, and of limited duration.
U.S. Current Trend: COVID-19 and Civic Freedom
Governments elsewhere in the world have abused emergency measures during this pandemic to achieve other ends. For example, in Hungary the government is seeking an indefinite state of emergency and in India the COVID-19 pandemic was used as an opportunity to whitewash murals that criticized the government’s controversial new citizenship act. (For more on ICNL’s global efforts to protect civic freedoms during the pandemic see ICNL’s COVID-19 page.)
In the US, responses to addressing COVID-19 raise significant civil liberties concerns, particularly in relation to new restrictions on gathering, surveillance measures, and barriers to participation in government.
Restrictions on Gatherings
Physical distancing is critical to fighting COVID-19. The Center for Disease Control (CDC) has recommended that all events over 10 people be canceled or held virtually. Most states have imposed significantly stricter restrictions, with many governors issuing stay at home orders (except for essential needs) and others banning various sized gatherings via executive order.
In New Hampshire, the state’s restriction on gatherings of over 50 people was challenged in state court as violating the freedoms of assembly and religion. The judge upheld the restriction on public health grounds, but was careful to note that the state’s restriction had a sunset clause and that the court would remain open to future legal challenges as the public health situation evolved.
While having a sunset clause on restrictions on gatherings is a clear best practice, and has been adopted by most states, some states have not. For example, restrictions in Maryland and New Jersey end only after they are proactively rescinded or the emergency is declared over.
It is unknown how long the emergency restrictions on gatherings will be justified on public health grounds. Further, once the height of the COVID-19 crisis passes, there may be a prolonged period where public health measures can be relaxed, but not entirely removed. In this context, the government should prioritize protecting and facilitating the safety of rallies and demonstrations, including those related to the upcoming 2020 primaries and general election. For example, if there is a political demonstration while COVID-19 still remains a threat, authorities may need to allocate more public space to avoid overcrowding.
Companies are offering services to track whether people in the United States are physically distancing by using anonymized cellphone data. For instance, Unacast provides a “social distancing scoreboard” that grades states on how much people in the state have reduced their movements compared to pre-COVID-19 data. Descartes Labs has developed similar modeling.
The US government has also reportedly been in talks with tech companies to use location data to combat COVID-19. This has raised concerns that the government could develop a surveillance system of individuals that would infringe privacy rights and could be used outside the context of COVID-19. For example, if misappropriated, federal, state, or local governments could use this technology to routinely track who attends a protest or a political meeting.
Countries such as South Korea and Israel have used location data to alert those who may have crossed paths with those infected with COVID-19. Critics of this approach in the United States claim that it is not clear how effective this system is given the limitations of the technology. For example, location data often cannot accurately determine whether one has come close enough to a COVID-19 positive individual to have risked infection.
New surveillance measures should always be judged first on their efficacy. Ineffective measures, or those that can be achieved through less intrusive means, should be rejected. Measures that are adopted should only be used for public health purposes. There is a clear risk that if not designed carefully the government could create new surveillance systems that may then be used to infringe political rights of Americans for years to come.
Transparency and Participation in Government
Government, particularly in a moment of crisis, needs to remain both transparent in its functioning and open for public participation. At the federal, state, and local level there are widespread reports that it has become more difficult to receive information from open record requests since the COVID-19 epidemic. Deadlines for responding have been suspended by some states and localities, and the FBI announced it will only accept record requests through postal mail (not electronically) in seeming contradiction of US regulations.
Similarly, governments have changed rules around public participation in public meetings. For example, Michigan’s governor issued an executive order temporarily modifying the state’s open meetings act to allow for virtual meetings of public bodies as long as the public can access the meeting, as well as participate and provide input in real time. Other states have been less clear. For example, a similar executive order in Nebraska allows for public meetings to be held by video or telephone conference as long as there is access to members of the public, but it does not make explicit that the public must be able to participate.
It is understandable that government has suffered staffing shortages because of COVID-19 that limits its ability to function. That said, it is critical for the government to maintain public trust in order to effectively address COVID-19. Prioritizing transparency and public participation is critical for that trust.