How to Protect Civil Liberties in a Pandemic

There are much bigger worries than temporary stay-at-home orders.

Last month, tens of millions of Americans suddenly accepted previously unthinkable restrictions on freedoms as basic as leaving home, gathering for worship, assembling in public, running businesses, and having elective surgery.

They did so understanding the sacrifice to be urgent and temporary. The coronavirus was spreading. Dramatic action was required to avert countless deaths. Then life would return to normal. But as the weeks pass, the comforting conceit that this emergency is time-limited begins to muddy as much as it clarifies. What if there is no effective treatment until 2021? Or 2023? What if more and more members of the public dissent from social distancing with each passing week, until compliance is no longer mostly voluntary?

The prospect of civil disobedience seemed to grow last week, when President Donald Trump instructed his Twitter followers to “liberate” several states with Democratic governors and small populist protests began to make headlines in communities across the country. In one scene, protesting motorists in Denver were met by health-care workers silently blocking traffic. On Monday, a couple thousand people gathered for an anti-quarantine protest in Harrisburg, Pennsylvania. Similar gatherings are scheduled in other cities.

The cries to “open up the country” don’t reflect the feelings of most Americans. A poll released Monday found that 60 percent of Americans oppose the protests, while 22 percent support them. Nor are the protesters of a like mind with some of the country’s most prominent libertarians and civil-liberties organizations.

The UCLA professor Eugene Volokh, a First Amendment expert with a reputation for valuing civil liberties, argued recently that while liberty of movement and association are hugely important, “the premise behind the liberty is that people assembling together can choose to be ‘peaceable,’ and thus physically safe for each other and for bystanders.” Conversely, COVID-19 “has the property that I can sicken or even kill you with it entirely inadvertently.” Those infected can then harm others who were not even present at the initial gathering.

“Normal conditions that justify liberty of movement”—conditions that make it consistent with the premise that we have the right to do what doesn't physically harm others—“are regrettably not present when each of us (with no conscious choice on our parts) is potentially highly lethal to people around us,” he concluded. “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.”

I wondered how the coronavirus is affecting the thinking of other prominent civil libertarians, specifically the heads of organizations that would typically abhor business closures and strict limits on free assembly, including the American Civil Liberties Union, the Electronic Frontier Foundation, and Reason magazine. I found that their “judgments about liberty” also contrast with those of the protesters—which isn’t to say they’re not deeply concerned about present and future infringements.

The ACLU has never confronted a crisis quite like this one. When the Spanish flu ravaged the country in 1918, the 100-year-old organization didn’t yet exist. After the 9/11 terrorist attacks, federal officials changed national-security laws and created a whole new regime of secretive courts that rendered surveillance broader and less accountable. Many of the most onerous civil-liberties infringements were focused on immigrants, foreigners, and young Arab men. Measures taken in response to COVID-19 are “potentially a crisis for the civil liberties of all Americans,” Anthony Romero, the ACLU’s executive director, told me. “We have to be careful. We’re in a whole new world.”

Romero began his tenure days before 9/11. Almost 20 years later, he is still dealing with its aftermath. In emergencies, he reflected in an interview earlier this month, government officials justify new powers by pointing to the extraordinary challenges of the moment. Yet long after the emergency passes, they tend to assert those very same powers as if they are the new normal.

For now, the ACLU is willing to accept some incursions on the fundamental rights that it zealously defends “if they are time-limited and have a rational basis in science,” because of the implications for the spread of COVID-19, he told me. “But there is always the PATRIOT Act factor. We are still litigating powers in 2020 that were adopted in 2001. So we have a skeptical view of mere assurances that anything is time-limited. You have to build in a self-destruct button.”

In the past, the ACLU decried what it saw as needlessly onerous quarantines. During the 2014 Ebola epidemic, a man who traveled from West Africa to the U.S. tested positive for the disease, wound up in a Dallas hospital, and infected two health-care workers who were given insufficient training and equipment. Various U.S. states reacted by imposing controversial 21-day quarantines on asymptomatic American doctors and nurses as they returned home from missions abroad to keep the epidemic contained.

“Nearly 40 years of encounters with Ebola—and an overwhelming consensus in the medical and public-health communities—have shown that infected patients do not transmit the disease before symptoms appear,” the ACLU argued in a 46-page report, “and therefore quarantine was not and is not needed to prevent the spread of Ebola in the United States for anyone who is willing and able to self-monitor for symptoms.” The report noted that “no one quarantined in the United States developed Ebola, and no one transmitted Ebola outside of a hospital setting. Because the Ebola quarantines of 2014–2015 were not medically necessary, they violated the U.S. Constitution.”

COVID-19 does spread through asymptomatic individuals, however––and solid evidence suggests that shelter-in-place orders may be the least-intrusive method yet known to arrest exponential growth in cases and deaths. That’s why ACLU litigators have so far challenged just one local shutdown policy, a curfew in Puerto Rico that struck them as anomalously excessive.

Quarantines and stay-at-home orders may be “an area where the incentives of government officials and the values of civil libertarians align, in that these have to be time-limited because we have to get people back to work; we have to get the economy running,” Romero said. “Civil-liberties interests coincide with government and economic interests to resume as much of normal life as possible.”

Future clashes with public-health officials are possible, though. “Some medical professionals talk about rationing—for example, the rationing of ventilators, in cases where there’s scarcity, to allocate them to COVID patients that have the highest chances of survival,” Romero said. “That would mean the elderly and some individuals who are disabled get deprioritized in state institutions, contrary to a number of federal laws that prohibit discrimination based on disability or age. We are clear that neither disability status nor age can be the basis to deny care or assign a lower priority to medical equipment.”

Certain approaches to reopening society may provoke conflict, too. “Some regimes being discussed involve testing for antibodies,” Romero observed. “We agree that the only way you’re going to be able to open up the economy and get people back to work is to test broadly, but there are efforts to say, for those that don’t have the antibodies, they have to stay at home. That raises civil-liberties questions about the quarantining of people who are COVID-negative, yet present potential vectors for the spread of the virus.”

The ACLU’s position on antibody testing will depend on how these regimes are rolled out. Meanwhile, it continues to prioritize what it sees as more urgent matters, such as thinning out jail populations––it estimates that its advocacy has resulted in the discretionary release of more than 10,000 prisoners since this crisis began––challenging pandemic restrictions on access to abortion, and urging easy access to mail-in ballots in case the coronavirus is still spreading this November.

The Electronic Frontier Foundation is composed of technologists, lawyers, and activists committed to defending civil liberties in the digital world. COVID-19 presents many straightforward challenges. EFF opposes the federal government’s suspension of responding to Freedom of Information Act requests during the pandemic, wants to protect and encourage any whistleblowers who see abuses during the emergency, and believes that unduly onerous intellectual-property laws are impeding the public-health response.

Contact-tracing apps present trickier questions for the organization.

Imagine that Aaron and Zelda stand next to each other in line at a supermarket, pharmacy, or bodega. A day later, Aaron develops a cough and high fever and tests positive for COVID-19. Old-fashioned contract tracing might prove unable to locate Zelda so that she could get tested or self-quarantine. But what if we all had a coronavirus smartphone app that tracked our locations? Then Aaron could mark himself as “positive” in the app, triggering an alert on Zelda’s phone. Lots of software developers, including Apple and Google, are developing variations on that idea.

EFF has long sought Fourth Amendment protection for location data. To help develop a position on contract-tracing apps during a time-limited emergency, an internal task force developed a three-part test.

Cindy Cohn, the organization’s executive director, told me about it. “The first question is whether it is likely to be effective,” she said. “I was around at EFF after September 11. What was implemented often had no connection to efficacy. Later we could see that collecting everyone’s telephone records and doing one-hop and two-hop tracing didn’t help prevent any terrorist attacks. So making sure efficacy is the first thing we think about is tremendously important.”

The second question: Should some tools be off-limits even if they are effective? “We feel that facial-recognition technologies are just too fraught,” Cohn said. “Not that their efficacy is proven, but if you could prove it, using pictures of people to try to identify who might have been exposed to COVID-19 is still just too dangerous. Facial recognition is too damaging to anything like self-governance.”

The third question is: What guardrails will be in place? Specifics that concern EFF include, would a contract-tracing app be voluntary or compulsory? Would it offer users anonymity? Would the app collect only data necessary to the task at hand? Where would the data live? How long would they be retained? Who would have access to the data? And have efforts been made to prevent misuses by app users?

Reason is America’s premier libertarian magazine. In moments of optimism, its staffers hope that regulations that have been suspended during the pandemic, such as impediments to telemedicine, practicing medicine across state lines, and selling to-go cocktails, will be exposed as needless and abolished for good. More often, they worry that through abuse or incompetence, the state will do more harm than good in the present emergency.

The magazine’s editor, Katherine Mangu-Ward, worries that the Department of Justice will abuse the crisis to undermine the rights of criminal defendants, that local authorities will be discriminatory when enforcing lockdown measures, and that attempts at central economic planning, like invoking the Defense Production Act, will eliminate vital price signals that help markets meet human needs.

“At Reason, a core part of our mission is talking about ways that progress and innovation come from places outside of and separate from the state, and staying attentive to the sometimes-hidden costs that different government actions and regulations can impose,” she told me. “Already in this pandemic, we’ve seen individuals turning their lives or their businesses on a dime to promote crucial social goods. We’re worried about anything that would get in the way of that.”

Her list of worries is accordingly long and varied.

In the near term, she worries about possible limits on interstate travel. “We all know that it’s wrong to restrict people from traveling within the United States––that’s part of our deal here as a country,” she elaborated. “But where exactly is that in the Constitution? That’s a tricky question. What will the outcomes and precedents be if that question is tested in the courts because governors weren’t able to reach harmonious decisions about when to restart normal economic life?”

She also worries about centralized health-care rationing. “It is genuinely horrific that we as a nation are potentially facing thousands of trolley problems. But this isn’t the first time that nations or hospitals have had to make decisions about how to use scarce, lifesaving resources,” she said. “I consider myself a utilitarian libertarian, and it is important to me to try to maximize good outcomes. But I recognize other people disagree. So to me, the question should be answered as locally as possible...The people making the decisions should ideally be as close as possible to those who will suffer harm when they don’t get the resources. It makes me nervous thinking of Donald Trump making these decisions for the entire nation, and more comfortable letting individual physicians or hospitals make them.”

One of her greater long-term fears is that the pandemic will cause the United States to restrict trade long after the emergency passes. She understands why some see interruptions in global supply chains as a reason to create protections for certain domestic industries. “We’re seeing a lot of claims that 80 percent or 90 percent of U.S. drugs originate in China,” she said. “But that’s an example of bad information influencing people’s beliefs.” She believes tariffs make us poorer and less safe, and that we don’t know what we will need in future emergencies. “We have at times had strategic helium reserves,” she pointed out. “There are always conversations about steel. We talk a lot about staple crops. Yet none of those reserves or trade barriers have been relevant so far in this crisis. So I am very concerned about the costs in terms of human suffering if we harden borders and try to bring home industries that we are not well suited to execute here, when other countries can do it better and cheaper and improve their own lives at the same time.”

Given the state’s poor performance to date, Mangu-Ward would like to see it step back from curtailing voluntary behavior of all sorts and instead focus on quickly identifying policies that are preventing private actors from stepping up. And when helping private actors includes stimulus spending, she generally prefers approaches that don’t put the state in the position of picking winners and losers.

“There is a long libertarian tradition of favoring direct payments to individuals,” she observed. “But one thing I’ve struggled with––if businesses struggle through no fault of their own, if they fail because they are legally not allowed to function, the fact that the force of the state is behind the closure of those businesses makes me want to look more closely at the question of what, if anything, is owed them, and who owes it. Because at this point, it’s our children and grandchildren on the hook as we borrow huge, unthinkable sums from the future to keep us afloat now.”

The coronavirus crisis will last longer than intense lockdowns are sustainable. It is not unreasonable for citizens to demand answers more solid than any they’ve received about how long officials believe they can impose emergency restrictions and how hard they are working to eliminate any that are needless. But many conscientious civil libertarians simply don’t see temporary shutdowns during a pandemic as inherently tyrannical or even unreasonable.

One needn’t understate how much a few weeks can matter to a laborer or struggling small business owner to appreciate that, even setting mortality risks aside, shelter-in-place orders are the least of our worries. Six months from now, access to the ballot will matter more for democracy than the precise length of today’s shutdowns. A year from now, different statuses for people with different antibodies in their blood may pose thornier questions than any we’ve yet confronted. Two years from now, the endurance of liberty will hinge more on, say, how much we allow COVID-19 to permanently increase the degree of surveillance in society than whether one’s local beach or hiking trail stays closed––even needlessly and frustratingly––for a month or two too long.

During the flu pandemic of 1918, a league of populists and civil libertarians formed to protest a San Francisco ordinance that required the wearing of masks, believing they were doing their part to conserve freedom in America. They succeeded in getting the ordinance annulled. Then flu cases spiked. The law was restored. Eventually, as the pandemic subsided, the law was repealed. In hindsight, it is clear both that civil libertarians circa 1918 had a lot of present and future abominations to fret about––the Sedition Act, the Espionage Act, Prohibition, Jim Crow––and that a regime of forced mask-wearing wasn’t among them, regardless of the merits of the issue at the time.

It is hard to see clearly in the fog of a crisis. But for now, I suspect that civil-liberties organizations are more focused than populists protesters on the questions that will determine the degree to which we are free after this crisis ends.