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The Pandemic Surveillance State

In the drive to “reopen” the economy, the means to radically expand tech-based surveillance and criminalize our everyday lives are there for the taking.


In late March, while many Florida beaches remained dangerously packed, Governor Ron DeSantis called for checkpoints along the state’s border for law enforcement to meet incoming travelers. He refused to issue a statewide stay-at-home order for residents, instead mandating 14-day quarantines for all people traveling to Florida from a growing list of states—Louisiana, New York, New Jersey, Connecticut—and he threatened criminal action if the quarantines were violated. (The president approved of Governor DeSantis’s performance, calling him “a very tough guy.”) More governors joined in: Police were instructed by Rhode Island Governor Gina Raimondo to stop people at the border if they had New York license plates, and the National Guard conducted house searches to enforce a quarantine on travelers from New York. Texas Governor Greg Abbott had state troopers similarly enforce a quarantine. 

In the checkpoints’ first 12 days of existence, 3,700 people from the so-called “high risk” states were stopped and questioned, according to the Florida Department of Transportation. None were turned away. One highway checkpoint was temporarily abandoned, after backing traffic up miles into Georgia. To avoid that checkpoint, some drivers just drove off the road. At the time, Dr. Farzad Mostashari, who worked as an epidemic intelligence service officer at the Centers for Disease Control and Prevention and a national coordinator for health information technology in the Department of Health and Human Services during the Obama administration, called this “containment theater.”  

Containment theater, as Mostashari elaborated by phone, means “taking steps that make you appear strong and decisive and ‘doing something,’ that plug into a certain sense of wanting to be defended and protected during a time of crisis.” Rather than take practical steps to protect people, said Mostarshi, containment theater instead “is focusing on ‘the other.’” 

After so much misinformation and official neglect, with testing still scarce and care still stretched, the allure of this style of performance grows. Americans are primed to demand someone do something. In New York City, currently the epicenter of the global pandemic with nearly 20,000 reported deaths, Governor Andrew Cuomo is often given credit for doing all he can to counter the denial and neglect marking the Trump administration response. Yet in the state, violating social distancing guidelines is now punishable by a $1,000 fine—as enforced by police officers who violate social distancing guidelines themselves to hand out tickets. The fine itself presents its own kind of danger at a moment when millions are out of work, but in some cases, police are making arrests, sending people to crowded jails where the virus has spread faster than anywhere else in the city. Officers have been recorded by bystanders beating people during social distancing arrests; one officer is now on “modified duty” as a result.

In the first two weeks of enforcement, 311 documented 5,820 calls reporting alleged social distancing violations. At the same time, the kind of policing that defined the era of stop and frisk—low-level stops concentrated in poor and predominantly Black and Latinx communities—is some of the only policing to survive the pandemic. Along with this, as The Intercept has reported, more than 700 officers were assigned to police social distancing. The people New Yorkers are calling to protect them are themselves contracting the virus at nearly 7.5 times the rate of the city’s general population, according to the Legal Aid Society. As social distancing enforcement ramped up, around 20 percent of the force—6,300 officers—were out sick; the number of officers out sick has only dropped below 10 percent in the last two weeks.

What’s become clear by now is that this next stage in the coronavirus pandemic, the call to return to “normal life,” will play out in terms of surveillance, both in public health and law enforcement. Calls for tech platforms to step into the coronavirus fight have escalated, even positioning the crisis as an opportunity for platforms that have long operated with little accountability to burnish their reputations. Apple and Google announced plans to create “opt-in contact tracing technology” that would use Bluetooth to track and transmit proximity data from cell phones to inform people if they had contact with coronavirus patients. Trump son-in-law and unqualified coronavirus adviser Jared Kushner was reportedly considering a nationwide coronavirus tracking system, built by private health care technology companies; the Department of Health and Human Services has already debuted a coronavirus tracking system from the secretive, Trump-ally-backed technology company Palantir.

All this has public health, civil liberties, and privacy advocates concerned that in the premature desire to “reopen” the country, we will see a turn toward something like the response to 9/11 from the United States, something framed as being in the public interest, something made difficult to oppose in the moment. The Patriot Act for a pandemic. It’s a surveillance infrastructure we could be left with for decades to come. And it’s something that—given the combination of the unchecked power of American police and the unaccountable power of private tech companies, not to mention the federal government’s unwillingness to resource the communities hardest hit by the virus—might not even require the same scale of political overhaul to pull off. The methods to radically expand tech-based surveillance and criminalize our everyday life in the U.S. are there for the taking.

The Covid-19 crisis is currently concentrated in New York City and further concentrated in the borough of Queens—and there, in a handful of neighborhoods. This is dramatically illustrated in a map circulated in public health circles on social media, showing a strong overlap in reported Covid-19 cases and the neighborhoods home to the most service workers and the most rent-burdened people in the city.

Lena Afridi, director of policy at the Association for Neighborhood & Housing Development, along with research and policy associate Lucy Block, made the map from home, after a New York Times story on Elmhurst Hospital in Queens declared it the center of the pandemic. “I’m from Queens, I live in Queens—I hear sirens,” Afridi told me by phone. “My colleague [Lucy] lives in Elmhurst. For both of us, it felt very immediate and very real. I wanted people to understand that the people who are keeping this city running are the people who are most severely impacted by this virus.” 

The police surveillance methods associated with both the post-9/11 era and stop and frisk, like profiling people of color and immigrants, are still very much present in those neighborhoods. Latinx people in New York City, as of data released earlier this month, make up one-third of all coronavirus deaths. At that time, four Queens neighborhoods—Corona, Elmhurst, East Elmhurst, and Jackson Heights—were home to about 600,00 people and 7,260 coronavirus cases; meanwhile, in Manhattan, with a population nearly three times that of those neighborhoods, there were about 10,860 cases. “The overlay of anti-immigrant rhetoric in this country, on top of inequities in rates of chronic illness, has real implications on the health of our community and is contributing to this outcome,” observed New York City Department of Health and Mental Hygiene Commissioner Oxiris Barbot.   

What makes these communities and neighborhoods vulnerable to the virus could also make them vulnerable to crackdowns that could come in the name of protecting people from it. 

Though police in New York self-report few arrests as a result of enforcing social distancing (15, as of April 15), they have responded to thousands of calls made to the city’s 311 line—nearly 30,000 as of May 6. Jennvine Wong, staff attorney at the Cop Accountability Project at the Legal Aid Society of New York, has worked with her staff to map those calls. 

So far they’ve found calls that resulted in a police response were concentrated in particular neighborhoods, like Harlem, Times Square, Hunt’s Point in the Bronx, and gentrified Brooklyn neighborhoods like Greenpoint, Williamsburg, Bedford-Stuyvesant, and Brooklyn Heights. The project also noted that two precincts serving those neighborhoods—the 25th in East Harlem and the 84th, covering Brooklyn Heights and the public housing complex the Farragut Houses—both ranked in the top five neighborhoods for stop and frisks between 2014 and 2017.

It’s a limited data set, Wong cautioned. Getting accurate police data is difficult, particularly when police are enforcing new guidelines in an ad hoc way. (Police may be using other existing offenses to detain or charge people, which means those instances might not be reported as coronavirus-related policing.) “But what it does say to me is we need to pay attention.” While New Yorkers are required to wear masks in more public spaces, she said, existing laws forbid mask-wearing. “How is that going to play out in communities of color, where you may have young Black men, for example, who are already concerned about wearing a face covering that isn’t immediately obvious as a surgical mask, because they are concerned about being targeted by police?” 

“We can have every citizen and every New Yorker following social distancing guidelines, but without having public health resources, we’re going to have a hard time coming out of this,” said Wong. “We know we need more testing. And it seems like because we missed the boat on testing, there’s an overreliance on things like policing.”

Pressure is already growing to return American life to its pre-viral norms. Some place their hope in serological tests that can help people know if they had Covid-19 after the fact, but that’s not necessarily going to enable people to come out of quarantine, given unknowns about coronavirus immunity. Most people don’t know their status at all. 

This has put the focus on tracking confirmed cases, even if they are potentially just a fraction of total infections. Several states—including Alabama, Florida, and Massachusetts—are maintaining lists of positive cases and sharing them with first responders. That includes police, who say these lists will keep them safe; some departments maintain searchable address databases, and others can automatically display a warning when a 911 call originates from one of them. The surveillance extends beyond call response: Kentucky Governor Andy Beshear said the state had to “force a self-isolation,” as reported by WDRB; county deputy sheriffs were assigned outside one man’s house “24/7 for the foreseeable future.” A number of other Kentucky residents were required to wear ankle monitors to ensure compliance with quarantines; West Virginia has since authorized the same.

“We are now in this situation where over 50 percent of the world’s population is under some form of lockdown,” said Sara L.M. Davis, special adviser at the Graduate Institute’s Global Health Center in Geneva and author of the forthcoming book The Uncounted: Politics of Data in Global Health, in a phone interview. “This real kind of securitization and militarization of public space is underway, and it’s not sustainable—it’s not sustainable from a security perspective, and it’s certainly a disaster economically. So countries will be and increasingly are under pressure to find other solutions, and that’s where the tech giants step in.”

While much of the discussion about using apps or other tech-based methods to track presumed and actual coronavirus patients in the U.S. is so far speculative, a whole genre of such apps is being used widely in China to control who gets to leave quarantine. Based on a user’s mapped locations, travel, and other forms of data gathered from their mobile phones, Davis explained, the app assigns them a color-coded status: Green gives them freedom of movement, yellow is restricted, and red puts them under lockdown. An American tech product designer at Facebook, who has also worked for the Chinese social messaging app WeChat, detailed how people in China are using these apps, while also noting that “some found their codes inexplicably change from green to red during the day, and others found themselves locked out of their apartment complex. (And according to a New York Times investigation, the apps also appear to share this status with police.) Getting people back to work and into public life is the justification for putting people at the mercy of yet another algorithm. 

We don’t need to guess at what could go wrong with this: The Chinese government has already violated human rights by using artificial intelligence technologies to aid surveillance. It has used them to identify Uighurs, a predominantly Muslim minority group, the first example of a government intentionally using facial recognition for racial profiling known to the public, according to the Times. As many as 1.5 million Uighurs could be detained by the government. 

Private technology companies provided the government with these tools, and now some of those same companies are getting into the coronavirus business. This February, Beijing-based artificial intelligence company Megvii said it was developing a tool that would integrate “body detection, face detection, and dual sensing via infrared cameras and visible light,” a version of which is already in use in China, as reported by Al Jazeera. Megvii promoted this as “[r]ising to the challenge of safeguarding cities with AI.” Last October, Megvii was one of 28 Chinese companies blacklisted by the U.S. Department of Commerce; the company, it said, was specifically “implicated in human rights violations and abuses” in implementing China’s “repression, mass arbitrary detention, and high-technology surveillance” against Uighurs and other members of Muslim minority groups.

The American government has thus already taken a position on the kind of technology Megvii is developing to track and sort people based on presumed coronavirus status—that it has been used for ethnic and racial profiling violating human rights.

“China now is promoting these technological solutions in other countries,” said Davis, “and they have a lot of credibility in the moment, because they are seen as having successfully brought the epidemic under control.” 

Whether or not federal and state governments follow China’s example, private American technology companies are currently at work with public agencies. These include companies who already have their own troubling history of enabling privacy violations and anti-immigrant crackdowns at mass scale. 

Palantir, the secretive tech company co-founded by Trump ally Peter Thiel, has been contracted by the CDC to “predict” the spread of the virus, and in April The Daily Beast reported the Department of Health and Human Services will be rolling out a new Palantir-made coronavirus-tracking tool, which is already providing intelligence briefings meant to guide the president’s decisions about “reopening” parts of the economy. As of 2019, Palantir had contracts with the federal government totalling $1.5 billion—including with Immigration and Customs Enforcement, which has been using its technology to assist in deportations, a fact that Palantir admitted in the press after months of pressure from immigrants’ rights groups like Mijente. As Palantir sees it, the pandemic is a growth opportunity: According to its president, Shyam Sankar, “Our company as a whole is oriented around the response to Covid, not just in the U.S. but around the world. This is the driving thrust of our company.” 

The facial recognition technology company Clearview AI was in talks with state agencies to track coronavirus patients, according to The Wall Street Journal. Clearview AI, also financed in part by Thiel, is already in use by police departments across the country to identify people by matching photos with its own vast, proprietary database of social media data, scraped in violation of those platforms’ privacy policies. Clearview’s co-founder and CEO, Hoan Ton-That, has “deep, long-standing ties to far-right extremists,” as detailed in an investigation by Luke O’Brien at HuffPost. 

In response to the proliferation in these technologies, international human rights groups, such as Privacy International and Access Now, are tracking coronavirus-related surveillance and reported rights’ violations, as well as issuing guidelines for coronavirus-tailored data and privacy protections. More than 100 rights groups, including Amnesty International, Coding Rights, Human Rights Watch, Index on Censorship, and PEN International, issued a joint letter to governments earlier this month, demanding they not use the pandemic as cover for expanding digital surveillance. “Authorities and all-too-willing companies could rewrite the rules of the digital ecosystem in corona-colored ink,” said Peter Micek, general counsel at Access Now, in a statement, “which we fear is permanent.”

Anticipating such digital surveillance in the U.S., rights groups here are also urging caution. “The challenges posed by Covid-19 are extraordinary, and we should consider with an open mind any and all measures that might help contain the virus consistent with our fundamental principles,” wrote surveillance and cybersecurity counsel Jennifer Granick and senior policy analyst Jay Stanley, both at the American Civil Liberties Union, in a white paper released in April. “Location data contains an enormously invasive and personal set of information about each of us, with the potential to reveal such things as people’s social, sexual, religious, and political associations. The potential for invasions of privacy, abuse, and stigmatization is enormous.” And there’s no guarantee that these technologies are capable of working in a public health context. 

“We have spoken with engineers and executives at a number of the largest U.S. companies that hold location data on Americans’ movements and locations,” Granick and Stanley wrote, “and generally they have told us that their data is not suitable for determining who was in contact with whom for purposes of Covid contact tracing.” And without investing in health, these tools won’t work. “No contact tracing app can be fully effective until there is widespread, free, and quick testing and equitable access to healthcare,” Granick said in a statement.

Still, even if these tools did work, in principle, they aren’t health technologies; they are punitive technologies. Proposals to use location data to track people’s current movements, Granick and Stanley wrote, would be like “turning people’s cell phones into ersatz ankle monitors.” 

“The case that’s being made for these apps,” Davis, the global health adviser, told me, “is either we’re going to have total lockdown, or we are free to go, and we have apps.” Framing our choices in this way, it’s easier for officials to predicate “getting back to normal” on surveillance, to keep the focus on investing in punitive measures instead of expanding care and building supportive community infrastructures. Forecasting the health of our society based on the strength of the economy is the default setting, said Davis, rather than considering the consequences of not instead “scaling up the right to health.”

Going over the third coronavirus stimulus bill, it’s clear that many millions of dollars will be going to pay for things that aren’t directly related to medical care: A little more than $1 billion is earmarked for the Department of Justice, including $850 million in grants to state and local law enforcement, which can be spent on everything from overtime to personal protective equipment to drones. 

The coronavirus isn’t a case of history repeating itself so much as a confrontation with the history we never left. People have turned to AIDS activists to help them through this pandemic—perhaps without giving equal credence to the reality that the AIDS pandemic isn’t over—looking for parallel lessons. “These are two very different diseases,” Kenyon Farrow, senior editor at The Body, told me: Transmission operates very differently, and so does the relative stigma. “Where the two viruses and pandemics are similar—and there’s a difference between virus and pandemic—is the early disbelief.” They also share a disproportionate impact on Black and Latinx communities, along with the reaction to this inequity. “Who gets sympathy? And for whom is the response more surveillance, to discipline and punish?”

There are some concrete alternatives to this turn to police and punishment in the pandemic response. Nearly 100 community-based organizations have asked Congress to prohibit any state and local governments who receive federal funds from criminalizing actual or perceived transmission of Covid-19. They want Congress to prohibit law enforcement from using those funds to criminalize violations of coronavirus-related public health orders or for tech-based surveillance of individual health status. They ask that any Covd-19 data sharing be limited to public health agencies. 

At a minimum, before putting more people under surveillance—technological and carceral—the government can invest in workers carrying out the traditional kinds of shoe-leather investigative work to trace the virus and its spread through communities. As the country faces mass unemployment, scaling up contact tracing—perhaps as Massachusetts already has—could be a model public work project for our time. The location-based tracking tools are flawed, partial, and biased. They can be used too easily to violate people’s rights. Investing in public health leaves behind a system that will better protect us in the long term, more than anything the Palantirs of the world can promise.

“It would be so ‘us’,” Mostashari, the former epidemic intelligence service officer, told me, “to not to fund public health, so they don’t have the resources to just ask people, and instead, say, ‘Oh, we need to violate your civil rights without your consent, to track people’s movements using broad new federal powers.’”  

Prison abolitionist and professor of geography Ruth Wilson Gilmore’s definition of racism describes the power preserved by this choice: It is the production and distribution—as sanctioned by the state, as well as through extralegal means—of “group-differentiated vulnerabilities to premature death, in distinct yet densely interconnected political geographies.” It’s another way to say: The virus isn’t racist; the response is. And even before the virus itself was known to us, many Americans already knew that.