Eugene Kontorovich: To fight coronavirus spread, Israel is using cellphone technology – Could US do the same?

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Israel’s government this week approved the use of people’s cellphone location information to help battle the coronavirus epidemic – the strongest such action of any Western country.

This has raised serious – and legitimate – concerns about privacy and governmental intrusion in the form of unseen surveillance. Placing such sweeping data about people’s movements in the hands of the government is not to be taken lightly.

But in an epidemic or pandemic where strong public health measures are required, some rights will inevitably be restricted. The question is only which rights and for how long.

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Measures like Israel’s can, on balance, be a lesser evil for individual rights. If they help contain the spread of the disease, they save lives and reduce the scope and duration of far greater restrictions, like quarantines.

In fact, such surveillance measures would be consistent with the U.S. Constitution, given U.S. Supreme Court precedents.

Israel is using cellphone data to find out who a coronavirus patient may have exposed to the virus when asymptomatic.

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The vast trove of metadata allows public health works to see where the patient went in the past two weeks and what other cellphone users were in the same place. Those people can then be immediately warned and told to quarantine, limiting their unwitting ability to pass on the virus.

The cellphone data reveals on what buses a patient traveled, and what restaurants and other locations he or she frequented – and at what time.

Fortunately, Israel’s coronavirus experience has thus far been moderate and controlled. The vast majority of cases have been traced to their source, typically connected with foreign travel.

There have yet to be any fatalities (though there surely will be). The Israeli newspaper Haaretz reported Thursday that 433 Israelis have tested positive for the coronavirus, with only six in serious condition. The newspaper said another 44 people have tested positive in the West Bank, primarily in Bethlehem.

It goes without saying that the broad use of cellphone data to track the movements of people infringes on the privacy of individuals and should not normally be tolerated. Even its use under the present circumstances must be carefully controlled and limited.

But the particular circumstances of a contagious and life-threatening pandemic make this an appropriate response.

Individual rights, including privacy, do not exist in a vacuum. They cannot come at the expense of others’ rights. Individual rights are not absolute when their exercise creates significant risk for others.

In a pandemic – particularly one with such a long incubation period and asymptomatic transmission – infected people can endanger others. Opting out of an epidemiological tracking system manifestly does this, whether the holdout knows it or not. That is why measures are permitted in such circumstances that would otherwise be unthinkable.

People have a right to liberty and freedom of movement. But in epidemics and pandemics, governments can and have issued sweeping quarantines and closures, confining people to their homes to save lives.

People have a right to work, but in epidemics and pandemics, entire industries have been shuttered. This does not mean constitutional rights have been violated.

In Israel, as in a number of other countries, the government has instructed almost everyone in the country to stay indoors. It is hard to think of greater restrictions on liberty.

This is not a trade-off between liberties and safety, as might arise in a national security crisis. It is a trade-off between one set of liberties – barring governmental access to cellphone data – and another set of liberties involving being able to go outside and being able to work.

Deciding that the latter rights are more fundamental and less easily restored is reasonable. But if the use of the data limits the epidemic, than those who would refuse to share their location data are in part responsible for the greater and longer restrictions that are imposed on others.

Consider the following analogy. People normally have a right to bodily autonomy. But the U.S. Supreme Court has held – in a case involving a smallpox epidemic – that the government can compel vaccination for those who refuse.

In Jacobson v. Massachusetts, the Supreme Court held in 1905 that even those “apparently free from disease” may be quarantined, because of the danger of relying during epidemics on every person’s willingness “to submit to reasonable regulations.”

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But vaccination was vastly controversial when it first arose. The Jacobson case involved a series of smallpox outbreaks during the first years of the 20th century. Mandatory vaccination was relatively new and was opposed by civil libertarians who saw such actions as setting a terrible precedent for governmental intrusion into people’s private lives.

Vaccines had less quality control back then, and posed a risk when administered – yet the

Supreme Court concluded that compulsory measures could be mandated. The high court said that in cases involving contagious diseases, exercising one’s liberty can limit the life and liberty of many others.

The use of cellphone data is merely a more modern epidemiological response than full quarantine, but should be governed by the same rules. Of course, such programs should be carefully limited and administered. Safeguards should be built to ensure the data is not retained or used for any other purposes.

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And there should be a clear endpoint (for example, the lifting of movement restrictions, or the viral replication rate dropping below a specified threshold). Nor should this use of cellphone data provide a precedent for other kinds of emergency powers that lack the geometric and invisible expansion of danger to others.

But if using cellphone technology for surveillance shortens a major disease outbreak – and saves lives and other inconveniences and dislocations – it is a good deal for individual liberty.

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