Publication Date

Winter 2021


In times of national crises, the government often endows itself with broad and unprecedented powers. Following the events on September 11th, 2001, the government enhanced the scope of its surveillance capabilities in the name of preventing terrorist activity; privacy was second to “safety” as congress reacted rashly to pass legislation. Currently, as the United States responds to the global crisis of COVID-19, surveillance returns as an integral tool for national security. Both local and federal governments are using location metadata and health data to assist in preventing the spread of the disease.

Contact/proximity tracing – “which involves figuring out who an infected person has been in contact with and trying to prevent them from infecting others” – is the primary method for surveillance during COVID.19. This is being manifested through government contracts with private internet service providers like Google, Apple, and Facebook. These private third-party corporations have not only collected content-based data from its users (like emails or direct messages) but also metadata like user location that gets continuously and passively uploaded into their servers. While content-based data has been given certain legal protections, the acquisition of metadata by the government from private third parties is still open to interpretation. The current volume of data presents an unprecedented surveillance landscape. As of April 30th, 2020, Facebook has over 2.6 billion monthly active users. Google Chrome, a cross-platform web browser that saves everything you do to your Google account has over 2 billion users as of April 28th 2020. The prevalence of third-party data platforms without any meaningful change in third-party data laws has and will continue to cause significant violations in individual rights to privacy.

During COVID-19, there is a key shift in the “expected” surveilled population. Rather than policy that is outwardly aimed at “suspect” populations (“terrorists” or those affiliated) it now can include all US Citizens here or abroad and non-citizens in the country or trying to enter. Applying the lessons learned from post- 9/11 surveillance programs that created blanket-searches of domestic communications in the name national security could be valuable as the United Stated traverses this thicketed terrain. This article will identify key takeaways from the post-9/11 era and use them to contextualize the COVID-19 moment. Part I will discuss the legislation created and amended following 9/11 that gave the government broader powers of surveillance. Part II will look at how the current government has been responding to COVID-19. Both parts I and II will discuss the kinds of data being sought, which government agencies play central roles, and varying methodologies of data collection. Finally, part III will consider some protective courses of action by looking at the fallout from the post-9/11 era of surveillance and its abuses of individual privacy rights when looking forward towards future national security policy. While surveillance will be an integral tool in slowing the spread of COVID-19, the post-9/11 era has shown the kinds of personal violations that occur when government surveillance programs are allowed to act in secrecy and are given incredible deference.

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