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1 Harsha Panduranga, et al., Government Access to Mobile Phone Data for Contact Tracing: A Statutory Primer 1 (2020)

handle is hein.brennan/bcjgacmd0001 and id is 1 raw text is: Government Access to Mobile Phone Data for Contact Tracing A Statutory Primer By Harsha Panduranga and Laura Hecht-Felella with Raya Koreh PUBLISHED MAY21,2020 n an effort to contain the coronavirus, companies and governments across the globe are developing technological tools to trace its spread. Many of these tools seek to monitor individuals and groups in order to help identify potential carriers of the virus, alert people who may have been infected, flag places that may be at high risk, and measure the impact of public health initia- tives such as social distancing directives. While proposals run the gamut from analyzing networked thermometer data nationwide to deploying remote heat sensors for fever detection,' in the U.S. attention is focused mostly on using location or proximity data produced by cell phones to track movements and interactions at both the individ- ual and population levels.2 Many of these tools are being developed by the private sector, but the federal government and state governments are clearly interested in influencing their design and accessing the data they generate.3 At the same time, the patchwork of laws governing the disclosure of location data to the government - by cell phone companies, smartphone application developers, data brokers, indi- viduals, and others - does not adequately protect Amer- icans' privacy. Cell phone carriers are fairly heavily regulated when it comes to individually identifiable data, but constraints on other entities that collect similar infor- mation are markedly weaker. Aggregate data that does not explicitly divulge individuals' locations, identities, or associations is subject to even fewer limitations, despite evidence that it can sometimes be disaggregated and de-anonymized .4 Moreover, there are few limits on the sharing of loca- tion information among government agencies.' Instead, several laws promote government-wide information shar- ing.6 For example, location data collected by the U.S. Department of Health and Human Services (HHS) for the ostensible purpose of combating the coronavirus might easily be shared with local governments, other federal agencies, or law enforcement.7 Any effort to use location or proximity tracking must compensate for the lack of a regulatory framework that protects Americans' civil liberties. As the Supreme Court has repeatedly recognized, location information can reveal intimate details of a person's life, including visits to a lawyer, psychiatrist, specialized health clinic, or reli- gious site. Absent meaningful safeguards, government collection of revealing information might infringe on core civil liberties such as freedom of association and freedom of expression, especially if the data is misappropriated. Brennan Center for Justice at New York University School of Law

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