Privacy and pandemics – time for constitutional test

Spengler

Life is returning to normal in South Korea, Israel, and urban China, thanks to the combination of massive public health measures and digital tracking. The United States remains locked down for the most part, although a number of states are gambling on re-opening without sufficient data to predict the outcome.

Without comprehensive testing for Covid-19, government and academic models of viral infection are throwing out estimates that differ by hundreds of percentage points. A leaked Homeland Security report projects 200,000 dead this year, while the Institute for Health Metrics and Evaluation at the University of Washington has doubled its estimate of deaths through August to 135,000.

In an April 24 commentary I quoted German Chancellor Angela Merkel’s statement that Covid-19 “is an affront to democracy,” adding, “There probably is no way to prevent the spread of Covid-19 except by locating and isolating every single individual carrier. Perhaps 40% of all cases are asymptomatic but nonetheless contagious, we know from Iceland and a handful of cities where the entire population was tested. That makes conventional tracking methods useless.” The checks and balances of the US Constitution, I argued, offered the best way to prevent government abuse of personal information obtained in an emergency.

In the hyper-partisan Trump era, polarization infects the discussion of issues that should be a matter of the common welfare. A host of pro-Trump commentators excoriates his top medical adviser, Dr Anthony Fauci, for expressing caution about the possible consequences of early easing of restrictions. Trump himself tweeted support for anti-quarantine demonstrators in several US states. It isn’t at all clear that popular sentiment opposes strict quarantine. Americans have a right to object to lockdowns, but they should appeal to the courts. What the United States requires is a clear Supreme Court ruling on the limits to privacy in the face of an epidemic, and the means the government should employ to protect the data of individuals – particularly since the government’s past record is execrable.

President Trump, who doesn’t “want to be Mr Gloom and Doom,” wants the US economy to reopen quickly. He has no choice in the matter. If we remain in quarantine indefinitely we all will die eventually from starvation. But the West in general and the United States in particular faces extreme uncertainty. Americans meanwhile worry more about the health consequences of reopening too fast than about the economic consequences of reopening too slowly. The respected Pew Institute reports, “A sizable majority of Americans (68%) continue to say their greater concern is that state governments will lift coronavirus-related restrictions on public activity too quickly. Fewer than half as many (31%) say their greater concern is that states will not lift restrictions quickly enough.”

The grim scorecard of Covid-19 death rates shows an unsettling result: Very low death rates are observed in Asian countries that imposed strict lockdowns on their citizens, including compulsory quarantine and rigorously-enforced social distancing, and also tracked individual carriers electronically.

There is a great deal of skepticism about the People’s Republic of China data, but it is not obvious why the death rate on the mainland of China should differ greatly from Japan, Taiwan, Hong Kong and Singapore, which are ethnically Chinese, or from South Korea, with a similar Confucian culture. The political systems of these Asian countries differ greatly, but they have in common a cultural disposition to social discipline and – compared to the West – low expectations about individual privacy. Israel, moreover, kept its death rate to levels closer to those of the “Confucian” world than those of the West.

I do not take Beijing’s data at face value, but there is no reason to doubt the reporting from the other countries. The experience of the epidemic in Shenzhen, a city of 12 million a 10-minute bullet train ride from Hong Kong, is not much different than that of Hong Kong, which has a free press and hundreds of foreign journalists. There may have been more deaths in Wuhan and other Chinese cities than the government reported. It is possible to hide a few thousand deaths, but not a few hundred thousand.

The question of whether China fudged its death statistics ultimately is irrelevant. The response to the epidemic in East Asia (and Israel) differed radically from the response in the West. Germany falls in the middle, thanks to massive preparation and a robust health system. Before the first Covid-19 case was diagnosed in Germany, the country had manufactured a million test kits; the WHO test was developed in the first week of January by Dr Christian Drosten, now Chancellor Merkel’s chief adviser on the epidemic.

Unlike the Asians, Germany did not track smartphone locations. China has used smartphone surveillance combined with facial recognition for years, and the addition of the government’s “Healthcode” app to the ubiquitous WeChat and Alipay platforms allowed the government to track test status, body temperature and location for virtually all of China’s 900 million urban population. At the entrance to every restaurant in Shenzhen, a camera identifies the face of every diner and checks their COVID-19 test status in a government database, while a remote sensor measures their body temperature.

In most Chinese cities it is impossible to move about without multiple daily checks of this kind. If you test positive, you are quarantined at home, and the local Communist Party often installs a camera at your door, just in case you try to leave the house without your smartphone. Taiwan and South Korea also combined smartphone location tracing with CCTV footage, credit card transaction monitoring, and travel records to isolate carriers.

Whether or not the government imposes such controls from the top, as in China, or simply requests the participation of its citizens, as in Japan and Taiwan, Asian social solidarity produced similar results. Israel’s case is somewhat different; it had the dual advantage of an excellent public health service and permanent wartime preparedness. The government used its security services’ smartphone tracking software to monitor Covid-19 carriers. It also deployed the army to cordon off streets in many stricken neighborhoods, and imposed draconian quarantine measures on returning travelers.

The issue is not only the death rate, but returning to something like normal activity. In Hong Kong, Shenzhen and Seoul, people move about more or less normally, with extreme caution, to be sure. Asia is having a V-shaped, or at least a reasonably fast U-shaped recovery, while Western economies struggle to get back on their feet, and Western governments agonize over the prospective risk to human life. Germany is ahead of its peers, although its reopening is cautious and tentative. Each of its 80 national health system districts has a quota of 50 new cases per week, and will revert to lockdown if that threshold is breached.

Americans never will adopt the indifferent attitude towards privacy that has made it easy for Asian nations to track Covid-19 contacts electronically. That is a good thing, in my view. The strength of the West has been its belief in the sanctity of the individual. But technology that can track carriers at the individual level will not only save lives but vastly improve the likelihood of a return to normal economic life. The same technology can be abused. The challenge to American governance is to use Constitutional checks and balances to apply the technology without eroding the individual liberties that are America’s raison d’être in the first place.