Protecting Civil Liberties During COVID-19: Supports Grows for the Public Health Emergency Privacy Act

[WASHINGTON, DC] – As Google and Apple deploy new contact tracing apps to fight the spread of COVID-19, twelve members of the Senate and House of Representatives joined as sponsors of the Public Health Emergency Privacy Act to set strong and enforceable privacy and data security rights for health information. This week, the bill was co-sponsored by U.S. Senators Michael Bennet (D-CO), Elizabeth Warren (D-MA), Dick Durbin (D-IL), Edward J. Markey (D-MA), Tammy Baldwin (D-WI), Kamala Harris (D-CA), Mazie K. Hirono (D-HI), Amy Klobuchar (D-MN), Cory Booker (D-NJ), Bob Menendez (D-NJ) and U.S. Representatives Bobby Rush (D-IL) and Debbie Dingell (D-MI).

More information on the legislation is available here.

The legislation was originally introduced by U.S. Senators Richard Blumenthal (D-CT) and Mark Warner (D-VA) and U.S. Representatives Anna G. Eshoo (D-CA), Jan Schakowsky (D-IL), Suzan DelBene (D-WA), House Energy and Commerce Committee Vice Chair Yvette Clarke (D-NY), Health Subcommittee Vice Chair G. K. Butterfield (D-NC), and Consumer Protection and Commerce Subcommittee Vice Chair Tony Cárdenas (D-CA).

The bill is also newly endorsed by Access Now, Consumer Federation of America, MediaJustice, Demos, the National Hispanic Media Coalition, and the Center for Digital Democracy in addition to the Lawyers’ Committee for Civil Rights Under Law, Public Knowledge, New America’s Open Technology Institute, Consumer Reports, Free Press, Electronic Privacy and Information Center (EPIC), Public Citizen, health privacy scholar Frank Pasquale, and privacy scholar Ryan Calo.

What Congress Is Saying…

• U.S. Senator Richard Blumenthal (D-CT): “Contact tracing is key to containing COVID-19, but Americans will only use digital apps when there is trust and clear legal safeguards. There is clear, growing momentum for the Public Health Emergency Privacy Act to help stop the spread of this virus and protect Americans’ privacy.”
• U.S. Senator Mark Warner (D-VA): “Communications technology has played an enormously important role for Americans navigating the new reality of COVID-19. It’s clear that technology will certainly play an important role in helping to track and combat the spread of this virus. Unfortunately, our health privacy laws have not kept pace with new technologies, or Americans’ expectations for such sensitive data.  Americans are concerned that creeping privacy violations could become the new status quo in health care and I’m encouraged by the number of policymakers seeking solutions to this challenge.”
• U.S. Representative Anna Eshoo (D-CA): “I’m thrilled to see growing support for the Public Health Emergency Privacy Act in both chambers of Congress, and key consumer advocacy and civil rights organizations. The momentum behind our legislation shows the critical need for Congress to enact strong privacy and civil rights protection as new technologies are adopted to help stem the spread of the coronavirus."
• U.S. Representative Jan Schakowsky (D-IL): “I couldn’t be more pleased to see Members, Senators, and civil society groups lining up behind the bill. If digital contact tracing is going to augment manual contact tracing, it’s critical for us to have these sort of consumer and civil rights protections in place. I am sure it’s just a matter of time before our Republican colleagues recognize that, and support this measure.”
• U.S. Representative Suzan DelBene (D-WA): “As tech-based COVID-19 contact tracing is implemented, more momentum is building for guardrails to protect our personal information. In order for these tools to be successful, they need broad participation from the public. To build the trust necessary for that, we must ensure information will only be used for public health purposes.”
• House Commerce Committee Vice Chair Yvette Clarke (D-NY): “I look forward to moving the Public Health Emergency Privacy Act forward with the outpouring support we have received from our colleagues, civil rights organizations and consumer advocacy groups. One of my priorities as the House Energy & Commerce Committee Vice Chair is to ensure that the American people’s sensitive data is safeguarded in this digital world.  As we turn to key technological methods like contact tracing to tackle the coronavirus pandemic head-on, we must always keep our shared commitment to protecting the American people’s right to privacy at the forefront of our agenda.”
• House Commerce Subcommittee on Health Vice Chair G. K. Butterfield (D-NC): “Science tells us that until there is a safe, effective, and widely available vaccine to COVID-19, robust testing and contact tracing will be two of the most important tools we have to combat this virus. Technology, such as contact tracing apps, may hold promise to assist these efforts. However, it is critical that tools such as these include privacy protections that vigorously protect Americans. The Public Health Emergency Privacy Act will provide critical safeguards to ensure that civil liberties are not trampled on in the name of progress. I am especially pleased the bill also includes robust voting rights protections which are essential to protect our democracy.”
• House Commerce Subcommittee on Consumer Protection and Commerce Vice Chair Tony Cárdenas (D-CA): “As we work to contain the spread of the virus and mitigate its effects, we should and must use every resource available, but we cannot allow that urgency to ignore the civil liberties of American citizens, especially those of our most vulnerable. This bill puts in place legislative safeguards that will protect Americans from having their sensitive health data misused by bad actors. I’m heartened to see that this legislation is gaining bicameral support. Our response to COVID-19 must be swift and strong, but not at the expense of individual privacy.”
• U.S. Senator Michael Bennet (D-CO): “Effective public health surveillance ultimately requires the cooperation and trust of individuals and communities whose data must be collected. If people fear the government will misuse their data, they may avoid testing and withhold critical information, jeopardizing our response to the pandemic and endangering the health of our communities. As governments worldwide develop and deploy these technologies, the United States has an opportunity to lead. The Public Health Emergency Privacy Act will help us set an example to the world for how to protect not only our health, but our most cherished values.”
• U.S. Senator Elizabeth Warren (D-MA): “All Americans have a fundamental right to privacy – in a crisis or not. Our bill will provide robust protections for people’s personal data and health information and let us use tools like contact tracing to stop COVID-19 dead in its tracks without undermining civil rights.”
• U.S. Senator Dick Durbin (D-IL): “As we develop new contact tracing tools to help track the spread of COVID-19, we must protect private consumer health data. Our bill establishes strong privacy protections for sensitive health information so people can feel assured that their data will only be used to protect public health.” 
• U.S. Senator Edward J. Markey (D-MA): “The coronavirus pandemic continues to cause devastating human suffering, loss of life, and economic pain in Massachusetts and across the country. While this public health crisis requires innovative and bold solutions involving data and technological tools, our response cannot come at the expense of our cherished civil liberties. I am proud to co-sponsor the Public Health Emergency Privacy Act, which includes key protections against discriminatory data uses and empowers consumers with critical privacy rights.”  
• U.S. Senator Kamala Harris (D-CA): “Let’s be clear: the American people’s personal health information should be protected. I’m proud to join my colleagues in co-sponsoring the Public Health Emergency Privacy Act. This vital legislation will ensure privacy protections are included in contact tracing technologies. It is essential we have public trust so these technologies can serve their purpose in helping reduce the spread of COVID-19.”
• U.S. Senator Mazie K. Hirono (D-HI): “Americans are rightly combating the spread of the coronavirus by teleworking, social distancing and wearing masks. But defeating this virus shouldn’t require them to give up their privacy. As we turn to the important tasks of testing and contact tracing, technology should be used to aid these efforts while protecting user privacy—both to build trust in these systems and because it’s the right thing to do. The Public Health Emergency Privacy Act meets this challenge by requiring contact tracing apps and other public health technologies to build in common-sense privacy protections.”
• U.S. Senator Bob Menendez (D-NJ): “As we continue to battle this unprecedented pandemic, Americans shouldn’t be forced to compromise between protecting their data or accessing public health resources. The Public Health Emergency Privacy Act is a common-sense legislation that will ensure privacy protections are included in any contact tracing technologies developed by private companies. We should not be giving a blank check of data to big tech.”
• U.S. Representative Bobby Rush (D-IL): “Although contact tracing is not a novel concept, the technologies we are hoping to use to undertake this critical effort will be. That is why it is absolutely essential we ensure that companies deploying new contact tracing technologies are held accountable and that the private health information and civil liberties of all Americans continue to be protected.”

What Advocates and Experts Are Saying…

• Eric Null, U.S. Policy Manager at Access Now: “A public health crisis is not the time to give up on our privacy rights, and this bill would go a long way toward protecting those rights. COVID-19 response apps are already out there, and this bill will help ensure that the apps are distributed and used in a responsible manner that will limit the new and expansive surveillance systems companies are building. Allowing these apps to proceed unchecked would create serious privacy violations that will never be undone.”
• Susan Grant, Director of Consumer Protection and Privacy, Consumer Federation of America: “The Public Health Emergency Privacy Act would ensure that Americans’ sensitive information is kept private and secure when they use a contact tracing app or other technology as part of the public health response to the COVID-19 crisis. This protection is essential to instill confidence and trust in the public and private sector programs that are designed to combat the virus.”
• Myaisha Hayes, Campaign Strategies Director at MediaJustice: “Facing a pandemic during the digital age means grappling with new problems and creating novel solutions. We can't allow ourselves to be fooled by creeping surveillance disguised as miracle cures. We must be vigilant and weary of any proposed solutions that would increase the surveillance state's reach, which historically has occurred during times of crisis. We've seen the expansion of the surveillance state piloted in border communities, implemented in Muslim communities and targeting Black activists. We see the promise in using technology and data to stop the spread of coronavirus, but we also can see a near future where our communities, who disproportionately are essential workers hit hardest by the pandemic, become testing grounds for new insidious and lasting surveillance. Essential workers are people living on low incomes, Black and Latinx folks, immigrants, and agricultural, warehouse and meat packing plant workers. We can't let our communities, who are already failed by so many systems of oppression, continue to be targeted by surveillance under the guise of public health. This legislation provides important safeguards to help make sure that doesn't happen.”
• Brenda V. Castillo, President & CEO, National Hispanic Media Coalition: “As the COVID19 pandemic progresses and causes an uptick in the use of technology as a public health tool, the privacy and digital rights of the Latinx community will continue to be at risk. The National Hispanic Media Coalition commends the leadership of this legislation and is encouraged to see Congress making civil rights a priority in privacy protections, particularly for those who are hit the hardest by this pandemic, like the Latinx community. NHMC is proud to support the Public Health Emergency Privacy Act as a major step to ensure that rights of Latinx people are safeguarded – even amid a global crisis.”

Additional statements of support are available here.

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