Pandemic Surveillance and Racial Bias

Surveillance technology employed during the pandemic has disproportionately targeted people of color, leading to a normalization of both “racial discrimination and inequality,” according to a University of Pittsburgh law professor.

While tracking technology has been a useful tool during the COVID-19 health crisis, it has raised questions about how to balance the need the need to monitor the spread of infection with the right to privacy, writes Christian Powell Sundquist in a research paper published in the Seton Hall Law Review.

Sundquist said the rise of new digital surveillance technologies has created a form of “pandemic surveillance discrimination.”

“The world certainly must use all means to end the devastating COVID-19 pandemic.,” Sundquist wrote. “We also need to be careful, however, to not undermine individual privacy rights or engage in racialized responses to the current crisis.”

He noted that the practice of “collecting massive amounts of personally identifiable data from millions of persons around the world — often with little to no regulatory oversight (or legal limits) on how that information may be later used,” has a long history.

Digital tools, like GPS ankle monitors, cell phone location data, and targeted quarantine have exacerbated discrimination against racial minorities and immigrants.

Now, with the COVID-19 pandemic changing the narrative, many tech companies and governments have used the health crisis to incorporate even more sophisticated surveillance methods.

“Proximity apps” developed by Apple and Google to trace exposure to the coronavirus have been used to enforce quarantine requirements, while genetic samples collected from enhanced virus testing protocols have been used for research.

But it’s an easy leap from using these to protect public health to incorporating them as a form of social control, the paper said.

In China, surveillance has been used to selectively target African migrants and force them to quarantine. In Bulgaria, the government targeted an ethnic Roma community for increased surveillance, arrests, and quarantines based on Italian virus numbers — while also using airplanes to spray “disinfectant” chemicals.

Sundquist cites a United Nations report which found that people of African descent are disproportionately being targeted by health surveillance technology to enforce quarantine orders in many countries.

Racial Health Access Disparity & Discrimination

“Crises have a way of bringing out the worst in people,” Sundquist wrote. “Crises, in particular, can facilitate the expression of racial bias against vulnerable populations as part of a broader psychological process to make sense of a suddenly chaotic and upended world.”

Not only did hate crimes and social backlash increase following the outbreak, but data supported the fact that some communities were experiencing the pandemic differently.

Sundquist wrote that research shows Black, Latinx, and Indigenous populations have hospitalization rates that are 4.5 to 5.5 times higher than the White population — and also have disproportionate death rates.

Much of this is compounded by the fact that different groups have had different access to vaccines. In Texas, the Hispanic population makes up just 15 percent of the vaccinated population, despite accounting for 44 percent of cases and nearly 50 percent of deaths from the virus.

This is related to government responses of rationalizing racial inequality, vaccine access, and healthcare access and falsely boiling itdown to race-based differences in disease susceptibility to justify discriminatory public health measures, Sundquist asserts.

He notes that this is a breeding ground for discrimination.

“The potential for racial discrimination in the enforcement of COVID-19 rules, as well as the collection of COVID-19 data, is heightened by the delegation of public health surveillance duties to local law enforcement agencies,” Sundquist writes, noting that enforcement of pandemic regulations often mirrors the racial biases found in law enforcement agencies.

Sundquist also notes that state policies to share private health information collected by laboratories — like those testing for COVID-19 — and hospitals engaging in both treatment and testing sharing that information with law enforcement agencies have magnified these intrusions.

Racialized responses have been an ugly undercurrent of the pandemic.Former President Donald Trump continued to characterize the disease as the “Chinese virus. ” Black or Latinx individuals received some 92 percent of summons for COVID-19 protocol violations issued by the New York Police Department.

“A recent study appearing in the Journal of Bioethical Inquiry thus concluded that, as ‘vulnerable subpopulations pay a higher price for surveillance measures…there is a reason why some types of COVID-19 technology might lead to the employment of disproportionate profiling, policing, and criminalization of marginalized groups,” Sundquist wrote.

Legal & Policy Solutions

With all of this in mind, Sundquist argued that there are legal and policy solutions which those with authority can implement to create solutions on how to use public health surveillance tools ethically for personal privacy, all while preventing the spread of COVID-19.

Privacy and nondiscriminatory public health surveillance can co-exist, but only if the current “sectoral approach to privacy” is abandoned, he wrote.

That approach, comprising “a mish-mash of privacy laws and regulations ranging from consumer protection, to education privacy, to medical privacy, and everything in between” is ill-suited to protecting privacy rights and guarding against discrimination, Sundquist added.

One promising development is the Public Health Emergency Privacy Act under review by Congress.

It requires opt-in consent, data minimizations, limits on disclosure to government actors, restrictions on commercialization, and established a private right of action, Sundquist said.

A clear “race-conscious” approach to privacy that would further the same goals. It would include:

• • Strict limitations to how data could be used;
  • Norms of proportionality, transparency, and data minimization; and,
  • The creation of a robust nondiscrimination policy.

“The world certainly must use all means to end the devastating COVID-19 pandemic,” Sundquist concludes.

“We also need to be careful, however, not to undermine individual privacy rights or engage in racialized responses to the current crisis.”

Christian Powell Sundquist is a Professor of Law at the University of Pittsburgh, School of Law where he teaches Evidence, Criminal Law and Racial Justice courses. He formerly served as the Associate Dean of Faculty Research and Scholarship and a Professor of Law at Albany Law School, where he co-founded The Institute for Racial Justice Research and Advocacy.

The full paper can be accessed here. 

Andrea Cipriano is a TCR staff writer.