Digital coronavirus data tracing would barter away American liberties: Laurence Tribe

In COVID-19 fight, we risk drifting over a 'privacy horizon' from which we may never return: Opposing view

Laurence H. Tribe
Opinion contributor

The benefits of the data-driven coronavirus tracing programs are immediate and tangible. The costs are more abstract and uncertain. But by trading abstract harms for short-term gain, we risk permanently damaging the fabric of our society.

Reopening our economy and society will require revealing more about ourselves than ever before. Knowing who can safely reenter public spaces demands extensive contagion testing, contact tracing and sharing medical information long deemed “private.” Especially for the digital generation, that might seem a low price to pay for greater normalcy.

But history teaches us to beware such bargains. They can permanently transform us in ways we will come to regret, as we drift over a “privacy horizon” from which we might never return.

Paradoxically, privacy is a public value. It begins with personal choices about what individuals share, and with whom. But the cumulative impact of those judgments far exceeds the sum of their parts. Just as decisions about liberty of speech shape not only personal expression but the vibrancy and openness of society as a whole, so too do decisions about privacy shape the character of the community.

Behavior differs in subtle ways in a world where walls have eyes, where everyone is an involuntary voyeur and intimate information is no longer ours to control. Immerse that reality in a thoroughly digitized world, and society is transformed.

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In New York City in March 2020.

Promises of limited access or nonindividualization provide little solace. Once compiled, data can be misappropriated in too many ways to predict — by opportunists and identity thieves, “trustworthy” companies, friendly and unfriendly governments.

Even in the anonymized aggregate, data can be deployed in damaging ways: Medical, pricing and advertising algorithms already produce disturbing discriminatory effects. And legal remedies, both judicial and administrative, have often proved inadequate or nonexistent. Adding intensely private medical information to that stew risks exacerbating existing problems.

As trying as this virus is, we mustn’t hastily barter away our enduring liberties for fleeting relief. At stake is nothing less than the soul of our society and the character of the future we’re toiling so tirelessly to ensure.

Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard University, is the author of the leading treatise on the U.S. Constitution, “American Constitutional Law.”

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