By Alex Marthews and Derick Bellamy
The last two months have terrified many in America and across the world. The COVID-19 coronavirus pandemic has spread rapidly, racing well ahead of most countries’ efforts to test and suppress it. While older people are proportionately more likely to die if infected, the coronavirus can and has
Months after it started, governments are finally getting to grips with the challenge of this pandemic, and addressing the tough decisions that it entails. And given these facts, it is understandable that governments will take steps to limit its spread, including measures that affect people who don’t yet know that they’re infected.
As they do, however, it’s our role more than ever to watch what they are proposing, and to make sure that their proposals are proportionate, evidence-based, and most of all that they don’t trespass on the Fourth Amendment. Serious and temporary threats to public safety can, and have been, exploited to do much permanent harm to our civil liberties–and this is not an administration with a natural grasp of what the Fourth Amendment requires and will continue to require.
Restore The Fourth was founded by people concerned about mass government surveillance. Americans have seen the government, after the 9/11 attacks, introduce new mass surveillance programs that were justified by fear alone: Fear of thousands of Americans losing their lives in future terrorist attacks which these programs are proven to be unnecessary in preventing. Even with sunset dates placed on the most controversial powers, Congress kept renewing them. They have outlived both bin Laden and ISIS’s life as an effective power, and it’s proving a decades-long battle to actually let any of those “emergency” powers lapse.
Now, the situation is different, and harder. We face what experts widely appear to consider a real, evidence-based threat that hundreds of thousands of Americans will lose their lives, and that now requires a strong government response—backed up by the stern lessons of epidemiology and the relentless tick of the exponential function. At the same time, we face a perfect opportunity for governments to exploit that very real threat in order to subvert our privacy and the Bill of Rights that protects it.
So, we should all take this threat seriously, but we can do so without letting it be exploited to permanently damage our civil liberties. Here are seven principles that may help.
1. The law and the Constitution matter. The government’s response at all levels should be bound by the law and the Constitution. Our great-grandparents’ quarantine laws and authorities already exist, to be dusted off and used again. We don’t need to postpone elections, declare martial law, or allow new forms of indefinite detention.
2. Primary authority rests with state governments. Quarantines and public health, in our system, are primarily the responsibility of state governments. Those governments should set policy aggressively and quickly to test, trace and quarantine affected individuals, and should receive all possible federal financial and medical assistance in this crucial task.
3. Medical and individual privacy still matter. The government should not use tech companies to conduct mass tracking of the location data of coronavirus victims to discipline adherence to quarantines. As the Fourth Amendment requires, a judge-ordered, individualized, probable cause warrant or individual, freely given consent are the appropriate standards. There are well-established procedures for expanded HIPAA waivers during an emergency, and there is no reason to set HIPAA as a whole aside.
4. Due process still matters. Quarantine and isolation orders should include due process rights for those quarantined: The reason should be clearly stated in writing, the duration should be specified, and individuals should have the ability to challenge their quarantining in court.
5. Curfews, checkpoints, arrests and imprisonment will make matters worse. Residents should be treated with dignity and respect. There should be no checkpoints or suspicionless, random police stops. You should not need papers or authorization to leave your home. Quarantine violators should be ticketed; but if you arrest and imprison people, you’ll fill the jails with poor people who are unable to make bond, and who will spread the virus behind bars; imprisoning offenders will decrease respect for, and compliance with, quarantine regulations.
6. Time limits matter. No additional government authorities introduced with the justification of the pandemic should extend beyond the point where a vaccine or a cure is made universally available. For example, as EFF notes, the CDC’s new access to information on airline passengers should expire, and the information be purged, with the epidemic; and that information should be used only for pandemic containment. Any increased powers approved by Congress should lapse with this pandemic, and require new legislation to be re-activated.
7. Above all, a pandemic is not an excuse. Neither Congress nor the President should use the pandemic to rush through illiberal and ill-advised measures like the EARN IT Act, renewal or expansion of PATRIOT Act powers, or systematically greater abuses of people at our borders. It is not there to excuse facial recognition, racism, or saber-rattling for a new world war.
Under a government that truly exists to protect us and our rights, there is no choice between liberty and safety. One engenders the other. We must protect our liberty because without it, we are not safe.
We urge our members and the public to stay home whenever possible, wash hands regularly, practice social distancing, and to stay safe from all threats, foreign and domestic, viral and human during these very difficult times.
Our best wishes to all of you.
Stay updated on the fight for the Fourth Amendment. Follow us on Twitter @Restore_the4th.