May 2020

COVID-19 Issues--Warrantless Surveillance
Increasing on Many Fronts, Globally

Across the United States, and in countries around the world, technology is increasingly being used to track, contain, and control the current outbreak. To that end, authorities are additionally implementing various measures that some see as unduly infringing on fundamental rights.

For example, in the State of Washington, Governor Jay Inslee, on May 11, 2020, issued requirements for restaurants reopening under the Phase 2 of the Governor’s four-phase plan; eight counties were approved for reopening under Phase 2. Among the requirements: restaurants were required to create “a daily log of customers and maintain that daily log for 30 days, including telephone/email contact information, and time in.” The requirement was criticized, including by the ACLU, prompting the Governor to issue a statement May 15, 2020, that he was “no longer requiring customers to provide a business with contact information, and businesses should not condition service on a customer’s unwillingness to do so.”

Instead, the collection of customer information would now be voluntary: “We are asking visitors to voluntarily provide contact information in case of COVID-19 exposure. We only need information for one person per household. If we learn you may have been exposed to COVID-19 during your visit, the information will only be shared with public health officials.” Restaurants and bars were hard-hit by the Governor’s shutdown; the state employment records show that about 100% of the bartenders in the state had filed for unemployment since the March 2020 emergency directives. In 2019, in King County – which includes Seattle – alone, restaurants and bars generated $6.3 billion in taxable revenue. The hardship will continue there: King County has not yet been approved for Phase 2 reopening.

In South Korea, people are tracked through phone GPS location history, surveillance cameras, and credit card transactions. In certain areas in Russia, people are limited as to how much time may be spent outside, and QR codes must be scanned to ensure compliance. In Israel, the government has plans to utilize a formerly secret phone surveillance system to send texts to people who might have been exposed to a virus-positive person. Some countries, like Italy and Austria, use anonymously collected location data to assess the merit of implemented lockdown measures. In Singapore, the government collected data on COVID-19 patients and has made the data available on its public health website; the data includes the patients’ ages, workplace and residence addresses, hospital locations, and travel history. According to one report, at least 27 countries are using data from cellphone companies to track people, and at least 30 countries have tracking apps available for download by the public.

In April, a Joint Letter by numerous signatories, including Amnesty International, the World Wide Web Foundation, the Swedish Consumer’s Association, the International Commission of Jurists, Human Rights Watch, the Center for Economic Justice, the Digital Rights Lawyers’ Initiative, and many others, while recognizing the global health emergency, also cautioned that “States’ efforts to contain the virus must not be used as a cover to usher in a new era of greatly expanded systems of invasive digital surveillance.” The signatories also stated:

Technology can and should play an important role during this effort to save lives, such as to spread public health messages and increase access to health care. However, an increase in state digital surveillance powers, such as obtaining access to mobile phone location data, threatens privacy, freedom of expression and freedom of association, in ways that could violate rights and degrade trust in public authorities – undermining the effectiveness of any public health response.

The Joint Letter set-forth eight conditions that should be met before governments expand use of digital surveillance to combat COVID-19. Among the stated conditions are a requirement that surveillance measures be “lawful, necessary and proportionate”; there must be limits on the duration of the surveillance measures; personal and health data “collected, retained, and aggregated to respond to the pandemic must be limited in scope, time-bound in relation to the pandemic and must not be used for commercial or any other purpose,” and the data must be secured; any agreements by governments to share collected data must be disclosed and must be based on lawful bases; safeguards against abuse must be in place, and individuals must have remedies for abuses; and the surveillance measures and technologies “must address the risk that these tools will facilitate discrimination and other rights abuses against racial minorities, people living in poverty, and other marginalized populations, whose needs and lived realities may be obscured or misrepresented in large dataset.”

A new advanced analytics program, called “Fleming,” from the Israeli firm NSO Group, is being used by multiple countries for coronavirus tracking in real-time. The Fleming program “displays the data on what looks like an intuitive user interface that lets analysts track where people go, who they meet, for how long, and where. All this data is displayed on heat maps that can be filtered depending on what the analyst wants to know. For example, analysts can filter the movements of a certain patient by their last location or whether they visited any meeting places like public squares or office buildings. With the goal of protecting people’s privacy, the tool tracks citizens by assigning them random IDs, which the government—when needed—can de-anonymize[.]”

The Electronic Frontier Foundation (“EFF”), not a signatory to the Privacy International Joint Letter, set-forth multiple principles that should be satisfied before a government can utilize mass surveillance, including that the data collection be “necessary and proportionate”; it must be based on science and not on bias; the surveillance measures must expire when the emergency has passed; the government must be transparent about the data collected and its uses; and persons affected must have due process remedies for abuses. The EFF also asked several questions before new surveillance powers are allowed to government; the questions (paraphrased here) are: 1) Will the surveillance measures actually be effective? 2) If effective, would the harms to freedoms be too great? and 3) If effective, and the harms are not too great, are there sufficient safeguards against abuse?

Sources:  Stefanie Loh, “To reopen, Washington state restaurants will have to keep log of customers to aid in contact tracing,”, May 11, 2020, updated May 13, 2020:
Tan Vinh, “Gov. Jay Inslee retracts requirement that diners provide contact info when restaurants reopen,”, May 15, 2020, updated May 16, 2020:
David Ruiz, “Mass surveillance alone will not save us from coronavirus,”, April 15, 2020:
Kareem Fahim, Min Joo Kim and Steve Hendrix, of The Washington Post, “Cellphone monitoring is spreading with the coronavirus. So is an uneasy tolerance of surveillance.” republished at, May 2, 2020:
Privacy International Joint Letter, April 2, 2020:
NSO Group webpage:
Electronic Frontier Foundation:
Matthew Guariglia and Adam Schwartz, “Protecting Civil Liberties During a Public Health Crisis,”, March 10, 2020:
Adam Schwarz, “How EFF Evaluates Government Demands for New Surveillance Powers,”, April 3, 2020:

Drones May Help Monitor Social-
Distancing and COVID-19 Symptoms 

The use of drones may help authorities more closely monitor people for symptoms of COVID-19 and for social-distancing. In Connecticut, the Westport Police Department planned to work with Draganfly, Inc., a Canadian drone manufacturer, in a test project. Draganfly’s drones, using sensor and vision systems, can “display a person’s temperature, heart and respiratory rates, as well as detect people sneezing or coughing in a crowd,” from 190 feet away, according to the manufacturer. The drones currently do not utilize facial recognition systems. In a press release, Draganfly said the Westport Police “intend[] to use the drone technology to help protect potential at-risk groups, such as seniors, crowds gathering at the town and state-owned beaches, train stations, parks and recreation areas, shopping centers and other areas where people tend to gather.” However, after criticisms, the Westport Police decided against participating in the “Flatten the Curve Pilot Program.”

Similarly, police in Daytona Beach, Florida, planned to use drones to monitor distancing and fever, but, following some backlash, indicated the drones would not randomly monitor for fevers. New Civil Liberties Alliance attorneys wrote to the Daytona Beach Chief of Police urging drone use be suspended and stated, in part, “Your department’s use of drones to conduct mass surveillance of people’s temperatures with the express purpose of discerning whether they may have a virus is plainly unconstitutional.” Kara Gross, legislative director of the American Civil Liberties Union of Florida, was quoted as saying, “It not only invades someone’s privacy. We have no idea how that information will be used … The answer is not to just throw drones up in the sky and collect information on everyone. We need to be extremely careful that any efforts to expand the government’s authority and the checks and balances are not an over-reach.”

Sources: Alison DeNisco Rayome,”'Pandemic drone' test flights are monitoring social distancing,”, April 22, 2020:
Draganfly Inc. press release, April 21, 2020:

by Neil Leithauser
Associate Editor