Washington Lawyer - July/August 2020 - 30

FEATURE
people who tested positive for coronavirus. The information did not
reveal the identities of those who were infected, but it did show the
places they visited.

Jeff Watts/American University

"Any new collection programs
should be narrowly tailored to
a clearly defined public health
need and time-limited, so that
they don't last past the time
they are needed."
JENNIFER DASKAL
Center for Strategic & International
Studies

However, the government may not need to rely on the willingness of
private companies to volunteer anonymized data for long. If criminal
penalties are to enforce stay-at-home or quarantine orders, the government will be able to procure individual location data through the use
of warrants. As with other warrants issued in criminal investigations, this
would require a probable cause determination and the approval of
a judge or magistrate.
In this hypothetical case, Fourth Amendment protections would become
more meaningful. The U.S. Supreme Court decision in Carpenter v. United
States established that accessing a person's historical cell site records
for a period of seven days or longer triggers the Fourth Amendment's
prohibition on unreasonable search and seizure because it violates the
person's "legitimate expectation of privacy in the record of his physical
movements."
Another concern of privacy advocates is that information collected now
to fight the spread of COVID-19 might be repurposed later or set a bad
precedent for other data collection. They note that PATRIOT Act provisions permitting spying and "sneak and peek" searches (allowing law
enforcement to conduct a search with a warrant while the occupant is
absent and unaware) were enacted to help apprehend terrorists, but in
practice they have been employed far more commonly in other kinds
of investigations.
According to an American Civil Liberties Union (ACLU) study on the use
of the PATRIOT Act, there were nearly 200,000 warrantless NSLs issued by
the FBI between 2003 and 2006 resulting in just one terror-related conviction. The same study stated that the FBI made 53 reported criminal
referrals to prosecutors out of the more than 143,000 NSLs. The referrals
all related to fraud, money laundering, and immigration, not terrorism.

THE VIEW FROM ABROAD
Concern about the collection and use of personal information is not
without a legitimate basis, given the actions of foreign governments.
In South Korea, the government posted online the location history of

30 WASHINGTON LAWYER

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JULY/AUGUST 2020

Germany and the United Kingdom have considered issuing antibody
certificates to those who have already had coronavirus. Privacy advocates expressed concern that this might easily result in the creation of
classes of citizens in which employment and other opportunities would
only be available to certificate-holders. Those who have them could be
permitted to resume life as usual, while those without them would
remain under quarantine. Advocates say these approaches carry with
them significant risks ranging from privacy intrusions to the potential
for ostracization and discrimination, both during and after the crisis.
On the other hand, Singapore's use of an app called TraceTogether has
been advanced by Nojeim as a positive methodology. Citizens download
the app voluntarily, generating a unique identifier for their phones. The
app then registers the unique identifiers of other TraceTogether users in
close proximity. If a person later tests positive for the coronavirus, the
authorities could download the app's data and notify those who
encountered that person in the weeks prior.
Nojeim says the voluntary nature of the app and its lack of third-party
involvement illustrate how noncompulsory systems could be effective,
though he says concerns still exist regarding the retention of data.

THE MIDDLE PATH
Data has been acknowledged as a critical tool to combat a pandemic,
though the protection of civil liberties requires that governments appropriately tailor new policies and practices by setting clear limits on the
data provided and requiring its subsequent destruction. Data can play a
critical role in tracking the spread of disease, determining how effective
mitigation efforts have been, and tracking recurrence in future pandemic
events.
"Digital tools can help support efforts to simultaneously protect health,
lift social-distancing measures, and restart the economy," says Daskal.

"[HIPAA] does not cover much
of the health information that
is being collected by employers,
tech companies, public health
authorities, researchers, and
others involved in managing
and fighting the COVID-19
crisis."
ADAM H. GREENE
Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

The "sneak and peek" provision of the PATRIOT Act, which constituted
a profound change in the interpretation of the Fourth Amendment
privacy protections, resulted in searches relating primarily to drug
interdiction. According to the ACLU, less than 1 percent of nearly 4,000
sneak and peek searches in 2010 were terror-related.

In Israel, the intelligence agency Shin Bet revealed that it had been collecting cell location data on its citizens for years. It used this information
to notify people who were in proximate contact with those who tested
positive for the virus and to require them to quarantine themselves.



Washington Lawyer - July/August 2020

Table of Contents for the Digital Edition of Washington Lawyer - July/August 2020

Digital Extras
Your Voice
From Our President
Election Coverage
Practice Management
Calendar of Events
When Law Firms Go Remote feature
Disaster Preparedness for Lawyers feature
Staying Afloat feature
Privacy Rights During a Pandemic Feature
Hamilton's Enduring Legacy feature
Annual Report
Taking the Stand
The Learning Curve
On Further Review
Member Spotlight -
Worth Reading
Attorney Briefs
Disciplinary Summaries
Women's Suffrage special section
Speaking of Ethics
A Slice of Wry
Washington Lawyer - July/August 2020 - Cover1
Washington Lawyer - July/August 2020 - Cover2
Washington Lawyer - July/August 2020 - 1
Washington Lawyer - July/August 2020 - 2
Washington Lawyer - July/August 2020 - 3
Washington Lawyer - July/August 2020 - Digital Extras
Washington Lawyer - July/August 2020 - Your Voice
Washington Lawyer - July/August 2020 - From Our President
Washington Lawyer - July/August 2020 - Election Coverage
Washington Lawyer - July/August 2020 - Practice Management
Washington Lawyer - July/August 2020 - Calendar of Events
Washington Lawyer - July/August 2020 - 10
Washington Lawyer - July/August 2020 - 11
Washington Lawyer - July/August 2020 - When Law Firms Go Remote feature
Washington Lawyer - July/August 2020 - 13
Washington Lawyer - July/August 2020 - 14
Washington Lawyer - July/August 2020 - 15
Washington Lawyer - July/August 2020 - 16
Washington Lawyer - July/August 2020 - 17
Washington Lawyer - July/August 2020 - Disaster Preparedness for Lawyers feature
Washington Lawyer - July/August 2020 - 19
Washington Lawyer - July/August 2020 - 20
Washington Lawyer - July/August 2020 - 21
Washington Lawyer - July/August 2020 - Staying Afloat feature
Washington Lawyer - July/August 2020 - 23
Washington Lawyer - July/August 2020 - 24
Washington Lawyer - July/August 2020 - 25
Washington Lawyer - July/August 2020 - 26
Washington Lawyer - July/August 2020 - 27
Washington Lawyer - July/August 2020 - Privacy Rights During a Pandemic Feature
Washington Lawyer - July/August 2020 - 29
Washington Lawyer - July/August 2020 - 30
Washington Lawyer - July/August 2020 - 31
Washington Lawyer - July/August 2020 - Hamilton's Enduring Legacy feature
Washington Lawyer - July/August 2020 - 33
Washington Lawyer - July/August 2020 - 34
Washington Lawyer - July/August 2020 - 35
Washington Lawyer - July/August 2020 - 36
Washington Lawyer - July/August 2020 - Annual Report
Washington Lawyer - July/August 2020 - 38
Washington Lawyer - July/August 2020 - 39
Washington Lawyer - July/August 2020 - 40
Washington Lawyer - July/August 2020 - 41
Washington Lawyer - July/August 2020 - Taking the Stand
Washington Lawyer - July/August 2020 - The Learning Curve
Washington Lawyer - July/August 2020 - On Further Review
Washington Lawyer - July/August 2020 - 45
Washington Lawyer - July/August 2020 - Member Spotlight -
Washington Lawyer - July/August 2020 - 47
Washington Lawyer - July/August 2020 - Worth Reading
Washington Lawyer - July/August 2020 - 49
Washington Lawyer - July/August 2020 - Attorney Briefs
Washington Lawyer - July/August 2020 - Disciplinary Summaries
Washington Lawyer - July/August 2020 - Women's Suffrage special section
Washington Lawyer - July/August 2020 - 53
Washington Lawyer - July/August 2020 - Speaking of Ethics
Washington Lawyer - July/August 2020 - 55
Washington Lawyer - July/August 2020 - A Slice of Wry
Washington Lawyer - July/August 2020 - Cover3
Washington Lawyer - July/August 2020 - Cover4
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