 Welcome everybody. Welcome to the Slate Social Distancing Social. I hope you're having a wonderful afternoon. I'm Jen Dasko from American University Washington College of Law. I also direct a fairly new tech law and security program there. And we have two really stellar panelists joining us today, Al Gadari, the Consulting Director of Privacy at the Stanford Center for Internet and Society. He is a stalwart in the privacy community and just a real powerhouse in helping us think through these issues. And we also have Catherine Waldron, who's a resident fellow national security and cybersecurity from our streets, who we are also just so delighted to have her join us as well today. So we are going to spend the next hour talking about surveillance and privacy in the wake of the pandemic that we are all now experiencing. We will talk for about 40-45 minutes and then we will turn to your questions. So please feel free to ask questions via the chat and we will get through as many of them, hopefully all of them before the end of the hour. So there's lots to talk about. Lots to talk about the ways in which data can help us understand and respond to the health crisis that we now are all experiencing that's unfolding all around us. And we see in the news all the time the various ways in which governments are using data, sometimes data that's been collected for other purposes, to help track and understand the coronavirus pandemic. And there's also lots and lots of talk right now about new apps being developed, apps that can do a range of different things, some for contact tracing purposes, although as we will talk about in a moment those are only as good as there is actually good testing and also some apps that can help do things like enforce home quarantines. This is something that Poland has really developed but it's in use elsewhere as well. I will just start by saying that in my view we need to think about good health and good privacy as going hand in hand. They are essential as both are essential as we kind of move our way through this crisis. And good privacy and good privacy practices help ensure that data is used in ways that can promote and have the buy-in from the general public in ways that can help promote the public health goals. So to set the stage I'm going to turn first to Al. And Al, I hope you can help us walk through when we talk about the various different kinds of health surveillance being discussed. What are we talking about? Sometimes we hear the discussion of aggregate level analysis or population level analysis. How does that differ and what are the considerations with respect to aggregate level analysis versus individual tracing which is often discussed as well? Yeah so thanks Jen and thanks to the sponsors for doing this. It's very timely. Really when we're talking about technology and public health here we're mostly talking about location information, location information that resides with a variety of different providers, cell phone companies, platforms, application providers. And the theory is that with that location information in hand coupled with a known diagnosis of infection we can do a lot of things at scale that we can't currently do manually. And there are two primary areas of interest and that's contact tracing that is looking at who the infected person has been in contact with over the prior days so you can identify and get them to self-isolate or quarantine. And then aggregate tracking at a really at a population level to determine the trajectory of the disease. Where are people moving? Where is the disease going? And you can use a variety of tools to to determine that. They all come with various levels of privacy risks and obviously at the individual level it's more intrusive than it is at the aggregate level. None of these things we're talking about are truly anonymous because none of the public health activities that are necessary can be anonymous. You start with the public reporting of the illness by the local healthcare provider. Once a person is tested they're known to the system and you begin the manual contact tracing activity. You're sharing who you've been involved with and where you've been. That information is making its way up the public health chain into the hands of public health authorities at higher levels ultimately the CDC and then from that we're extrapolating data in the traditional way to look at tracking. So obviously a lot of flaws in the manual process. It's resource intensive. It's difficult to verify. Memories are only so good 48 hours or 72 hours passed. And so the notion that you can use the technology of location information and extract it in a way that fills those gaps makes it more reliable and actionable quicker and more effectively. It is beguiling. But of course it comes with a variety of privacy risks. Great. So just to follow up on that and Catherine I'll turn to you to weigh in a little bit. It sounds like a lot of what you were talking about falls within the category of individual tracing as opposed to aggregate level analysis. So you know if you look at what some of the companies are doing some of what they're doing is taking data that they already have to provide kind of maps of how well people are doing with social distancing for example. And that is done on an aggregate level without necessarily tracking particular individuals. What I heard you primarily talking about was contact tracing which does involve individual tracking of individuals. You have to do that in order to do the kind of contact tracing to provide the particular health benefit that that kind of program is trying to achieve. Now you mentioned location tracing. Catherine I wonder if you could talk a little bit about some of the apps that are being developed and that and we all know that Google and Apple just made a big announcement this week about some of the work that they're doing if you could talk a little bit about that and the possibility of doing proximity tracking as opposed to location tracking and what's the difference between the two terms. So when you're trying to automate this contact tracing which has previously happened manually through asking people who they remember meeting when you're trying to do that manually you want to get you want to know where the person was or technically you want to know where they were and so there's a couple different ways to do that. You can try to get the information by knowing the location they were and as I said there's a variety of different ways to determine where a person has been geographically or as Google and Apple are trying to explore with their new the new tools that they're developing and the apps that some of the countries overseas Singapore has had developed is you can try to use Bluetooth to see which devices have been near your phone. So the approach that Google and Apple are taking is that they hope to build a set of tools where your phone would create a log of all of the other phones or devices that you have been within a certain number of feet during the past 14 days which is about how long it takes for symptoms of corona to manifest and so your phone would create a log of every other device it's been near and then if for example you were later determined to be positive to test positive for COVID-19 you could send out an automatic alert to let every other device know and then they could trigger a notification to tell people in question so this way people who you know you maybe don't remember passing on the street at all people that you don't that you didn't have any sort of there's no way that you knew their information and could pass it on with manual contact testing tracking you could still they could still be notified and this is viewed by a lot of people as a little less invasive because the Bluetooth doesn't actually track where you were so it knows you were in contact with another person but it doesn't know where that contact happened right so what do you think can this be done and protect privacy at the same time sure so so the benefit of the google apple approach is it's decentralized and that is that none of the data resides with a government agency and it is is close to anonymous as you can get technically so so there's there are some potential weaknesses or flaws that people have identified in using bluetooth from a security perspective but on balance those risks are are pretty small one i've heard said repeatedly is there's a false positive risk of doing that that it you might see your neighbor through a wall six feet away and you've never come in contact and that's considered a false positive but knowing your neighbor has it in your apartment house for example is actually a good thing not a bad thing so you know there are some potential security issues but by and large the decentralized approach is about the most privacy protective approach you can take to juxtapose that against what others have opposed or proposed to singapore for example is a centralized approach so that information from your bluetooth device is held by a governmental agency the europeans are in a debate right now between whether it's a centralized or decentralized approach that they want to take but the beauty of the google apple approach in my view is it's a platform level uh uh uh approach that it works in the operating system itself to permit interoperability across both types of devices and operating systems at a scale that can reach three billion people most of the other apps we're talking about government sponsored or nation state sponsored are just insufficient to reach scale enough to warn enough people to allow them to do the right thing get off the street stay at home till they're inoculated or until the the quarantine time is passed so so i think it's about the best you can achieve using any of the location technologies while protecting privacy and there are a couple of apps and approaches out there because remember ultimately the google apple approach is to create an operating system level a platform level it's not the app itself those apps will be developed by the various states and agencies that use it and working with google you'll download that from the google play store or the apple store and install it on your device and so you know you're going to get if you're infected a token you're going to get an indicator from the state in the app that says so it's the result of your testing and that's how we're going to broadcast so so there is still some concern that your individual status is known to the state but as i said at the outset it is already known to the state because you've been tested so i i think on balance the privacy concerns are are well outweighed by the benefit of of this proximity testing and approach so um you talked about the fact that everybody the different countries are are developing different apps different universities are developing different apps different nonprofits are developing different apps how how does that if everybody is downloaded a different app how does that work on the google apple system will they be interoperable so that um or does everybody have to have the same app in order to actually get the the relevant information passed on yeah well it won't work on the google apple system and that's the intention the intention is that those state authorities the public health organizations have the particular application for that purpose and then users will download the state sponsored app for that it's not intended at least as i understand it today it's not intended that an employer would be able to download it and use it with their employees or that uh any group of of uh organizations would be able to deploy it you have to sign you will be required to sign an agreement just like any other app developer would have to sign it'll be restrictive it's not going to allow this application to pull other sources of location data out of your device so the intention is very limited and uh uh short term and the benefit is again separately that google will remove this app when public health declares the emergency over so the operating system level hooks will be removed at the end of of the crisis so so again this the states those public health organizations will be required to sign up for the access and then the app they push to users at the end of the day if we would you'll need to sign up for as an individual to share it and it is an opt-in approach if you choose not to do it uh you're not at this point able to be required to do it what happens when just just back to you for one more question on this what happens in people cross borders so less of an issue in the united states but think about europe where people are moving you know eventually people will be moving back and forth with regularity is it will the contact tracing work across borders or does does do individuals who cross borders have to download the relevant country app for each country um so it's a great question i don't know the answer to whether you will need multiple apps for each state in each country you're in i don't believe that's been resolved and obviously i'm not a spokesman for google here either but but i my understanding is the interoperability benefit of it is it doesn't matter what country you go to the operating system access exists if the country uh agrees to the same terms their app will work and in in europe you have a competing group of um uh professors and academics who've developed a different approach to it that would have been a centralized approach and a second group who developed an application approach which is the decentralized api so they have yet to make that decision and presumably because google and apple have already done the heavy lifting on the gut works of the platforms they will probably in order to get the applications out fast follow along with with that model and sign up to develop their own apps that work within in in the framework that google and apple have set i don't again i don't know for sure whether germany or uk will agree with that or want their own centralized approach like singapore for example it is entirely feasible that they will decide that it must be a mandatory downloaded app that works for whatever country we're talking about and that each person like in china for example must download it uh but they can do that as much as they want but they won't get access to the google or apple data so they'll that would be an entirely separate concept uh an approach for them so kevin just point point about the lens a little bit um i was also mentioning the point about the question about effectiveness what do we need for the for this kind of system to be effective so we talk a little bit about scale what kind of scale do you need in terms of people actually using these apps and what else do we need for this to actually be an effective system as well so there's a couple of different things you need in order for the system to be effective the whole purpose of the app is that it's scalable on a level that manual contact tracing is um but in order for the apps to work you need a significant number of the population to buy in to say yes i am willing to download this on my phone and i'm willing to use it and then you also need to have widespread testing so the way the apps are currently being designed is that you can't as an individual say oh i have COVID-19 because what you don't want is someone going in and creating like mass panic or hysteria and requiring people to quarantine when in fact that person doesn't have COVID-19 and so the way they're being designed as of right now is that you would need an official um health official who is like tested and received the results to say yes this person has COVID-19 and then you could send out the notification to alert everyone else oh hey you've been in the the proximity with someone who has tested positive and so if we don't have widespread testing then it really doesn't matter how many people have used the app because there could be people who you know they have been in proximity they have the app they have COVID-19 but they can't get their test results back fast enough and so then all those people that they've been in touch with they can't be alerted the other difficulty is of course getting people to download the app while the apple google approach has a lot of built-in privacy features nonetheless the idea of having an app on your phone that's tracking the people you interact with i think that will raise like alarms for a lot of just everyday americans and you if you don't have a certain percentage of people to buy in then it doesn't really matter and even if people have the app on their phone like maybe they don't take the their phone out with them every day and so if that phone is not out there gathering the data it's not really useful and they had this problem in singapore actually where they had the app and not a high enough percentage of the population was really buying in you really need a significant percentage of the population so between the testing and the user buy-in while the app the api set of tools is really i think quite useful in theory it's we're gonna have to see if it's actually effective um in practice that takes me back to you so and you mentioned this already the possibility of governments mandating the downloading of the app or mandating this app is that something that could be done in the united states and should it be done um i think that's just like the 60 million dollar question uh the first part is the second part is nowhere should not be done but but but a lot of people think it should i mean in all honesty i think you know when you have a pandemic of scale that that uh threatens the lives of millions of people you can understand the desire to have something like this mandated and effective but um all you have to do is turn your phone off it doesn't work so so i i think mandating it would would be revolutionary in in in the sense that people just would not stand for it and it's a red line i think for a lot of people um i i don't think the government necessarily has the power to do it either and if you look by analogy this reminds me a lot of the apple um sanbernadino encryption problem on their phone mandating companies to change their platforms to change their technology to do things that aid the government and it's great when you use the word public health as opposed to terrorism but you know they are of the same um uh ilk so so i think it's a really tough thing to do um and i'll just say one third thing and just sort of building out kathryn said i think the effectiveness uh to the extent it is more successful the less we have to worry about the government stepping in and so the fears that come from using an app like this um you know can be blown out of proportion for the real risks and the benefits get overlooked while we worry too much we are never going to reach a hundred percent on app download but the truth is we also are not going to reach a hundred percent of testing it's impossible the number of tests we would need each day for the next year till we have a vaccine cannot be built cannot be processed and cannot be distributed it's just impossible so some balance in between uptake on the app and more availability of testing is the only interim measure short of everybody stay in their house that we have and success in efficacy may not be at 60 percent of the app as opposed to 20 but for 20 that's still better than zero and and it will not be a uniform across the country rollout either in many places in communities you may have 80 in and others you may have none it's kind of like voting patterns you know some people show up and some don't so so i think that that we focus a lot on the risks and the negative and if the conversation can change to more of the positives that will be better for the long run and i think people will be more comfortable with it if we don't cross those red lines that go to mandatory downloads and i know we'll talk also about mandatory quarantines and individual tracking because because those risks are also real and need to be considered in the decisions so i want to turn away from the apps for a moment and talk a little bit about the cdc so the cdc in the stimulus package got millions of dollars to do um what what is called pandemic surveillance captain what do we know about what the cdc is doing with that money what it plans to do what kind of is it is it gathering new data what what is it what what are the plans what do we know so the plan is still being determined to some extent they receive the money um most of the funding the cdc has goes towards working they partner with states and with local um health facilities so there will continue to be continued um work in that area one thing i do know that they're planning on working on is um improving electronic health reporting so the cdc has actually a program um where different hospitals can report on health on cases um electronically as opposed to like filling out paperwork sending a pdf to an email um but the program up until now has not been used widely it's really only been used in a few counties and it hasn't necessarily been used on corona cases so um one thing the cdc has said that they're going to start doing is investing in that area and that way data can be spread can be shared a lot faster well anything to add about what the cdc is doing uh no i think that that we still even with their effort however lack a standardization of reporting and and i wish some of the funds would go to making it a cleaner clearer picture of what's gathered in and uh how everybody can provide that in a standardized way because it is so disjointed across all of public health that you're not able to actually get a lot of data that you want is a result of the poor reporting so um we can do a lot with a with a standard for data collection so you mentioned um a second ago and we talked about this very early on about home quarantine apps and so the possibility of we've been talking about contact tracing and that's used um to notify people that might not know that they've come into contact with somebody who turns out in fact was sick so that they can take precautions um there's another question about what about situations where people are ordered to be quarantined because they tested positive or as is the case in some states um out of staters are being told that they need to quarantine when they cross the borders into another state well what about the use of apps to enforce that Poland as i mentioned before has a home quarantine app where individuals have to at various points in the day um randomly or not randomly but they're pinging they have to upload um geolocated images photos of themselves establishing that they're at home indias rolled out something like that in some parts of india as well it's something that's being considered in other places what do you think about that is that something that we should do to make sure that people actually stay home when they're supposed to stay home uh do you want that first Catherine yeah i'll take that first yeah i'll take that first and i'll let you have crack at the uh the legality um of that as the lawyer in the group um but yeah you're absolutely right Jen that this is something we've seen um being rolled out in several different countries Poland has their healthy app um india has some similar things um and then there are other countries that instead of uploading a photo um they just have a geolocation tracker either on your phone um or some other sort of device and so if you leave your designated quarantine area um it doesn't it sends a little ping to the proper authorities be like hey you're outside your area you need to come back um and in some places like china if you're that you can even be required to like send um your temperature to take your temperature and send that to police authorities so there's there's a wide spectrum um of how invasive and intrusive um the data required are is globally to uh make sure people are staying home um in regards to whether or not we should do that in the US um i think up until now most people have been there been stay at home orders um but there hasn't been the earliest much of like legally required quarantining um and i'll let i'll talk about this but as far as i am familiar with this is something that could theoretically um be legally possible um within the state and local authority um if that were to happen um i'll i'll let you verify but as far as i know states do actually have um the legal capacity to require people to quarantine um and so if that were the case i could see a scenario in which you know we did um require um selfies as a way to verify that you are in fact um staying at home as opposed to just spending police around knocking on doors at random times to enforce the quarantine yeah it it is um one of the most interesting questions um i've said before if typhoid mary had a cell phone we definitely would want to know where she was uh as it was she was uh arrested and quarantined uh numerous times uh and in fact had surgery inflicted upon her so i mean you know there's no question the government has an extraordinary amount of power when it comes to those who are infected i think the question is a little more subtle with those who aren't and those we don't know and so um it isn't really all that clear is broad as the governmental powers are and as well as they've been expressed in cases in the serene court uh and in state courts for 150 years now uh it isn't so clear that you can interfere with the rights those who do not have a diagnosis and force them to stay in at home uh i do think the powers are broad so yes and so then the question becomes would you rather have a technical means of ensuring those who are subject to quarantine remain at home while everyone else has some freedom because they aren't subject to that or would you rather everyone stay at home and i think that's going to be the tension we'll have to deal with and the state powers here uh i think are also broader at the state level than at the federal level the statutory scheme at the federal level uh uh you know has not been tested we don't really have uh an array of court opinions looking at the exact language and and its interpretation vis-a-vis what states have the authority to do so so i think we we may end up with this interesting tension between how various states approach it and as we know we are pretty well split and in the philosophical views is some states refuse to close their beaches during spring break but quickly close their highways to prevent people driving from new york uh into this day so i think it will be a really interesting question as we go along and then there just isn't a definitive answer but fear the power because it is great so let's let's just talk about the fourth amendment for a second here if we can um so you know we you know if we are talking about criminal law enforcement we all know that the police can track individuals as they're moving freely through the streets they can come and knock on your door and ask you all kinds of questions and that's fine that doesn't implicate the the the restrictions on searches and seizures being they have to be reasonable but we but there's a dividing line so the police can't search your home or um or or set up some sort of surveillance system in your home without a warrant do is there a fourth amendment problem here if we start thinking about um government monitoring via geolocation data whether it's a selfie or just constant monitoring of people's movements in their own homes i think there's no question there's a fourth amendment argument here against it there's uh also a question of whether the public health crisis in supreme court precedent trumps it and no pun intended i think it's unclear whether or not the very very broad language in the trilogy of cases starting with gibbons coming forward actually stands for the proposition that some of those constitutional safeguards fall aside in a public health crisis uh like a pandemic the problem is we don't have cases that tell us in specific examples whether that's so or not but you know this supreme court that is currently constituted has been a lot more protective of the home if you will right they don't like the invasion of technology beyond the four walls the outside four walls starting really over the last 50 years from kylo looking at whether you can you know look peer into a home with heat seeking devices and whether you can track a gps monitor into a home and whether cell towers uh data that been tracking a phone within a home is permissible and the trend really over the last you know a couple of decades has been what's in the house survives many of the the efforts of law enforcement to to invade the home for whatever the stated purpose but i don't think it's a settled question and i think the more people keep talking about it and writing about it the better it is to hone the question so this kind of a discussion with in these webinars i think is is not too early and in really needs to continue i think it's a it's a fascinating question as well and your analysis about the law about law enforcement restrictions um is obviously spot on i think as you pointed out the key question here is whether or not there's a different rule if we're talking about a public health emergency and then separately whether it might kind of be shoehorned into special needs type analysis as well um so it's interesting set of questions Catherine i'm gonna turn back to you you mentioned china a few minutes ago and some of the home quarantine uh ways of monitoring home quarantines in china another thing um that as i know you know china's been doing is mounting thermometers on facial recognition cameras um and i as we start thinking about maybe reopening our societies stay at home orders get lift lifted what do we think about um about thermometers remote thermometers as a posted an idea to cross through a remote thermometer to walk into a school or walk into a building or walk into um a place of work is that something that that we might start seeing is that something we should be encouraging is that something we should be worried about i i always hesitate to say we should follow china's lead i don't think in this case we should follow china's lead um it doesn't surprise me at all that china has you know mounted these thermometers which they've actually had thermometers in place um in certain areas for years i know in the airport um they've had thermometers in place that you've had to i've walked past them myself after um their incidents with SARS and other um more regional pandemics there um and then also their use of facial recognition which are fairly expensive and one thing to note about china is that along this the apparatus the pressure balance that's currently in place was actually in place before coronavirus was such a widespread problem china has their wide their use of surveillance and cameras is almost omnipresent especially in cities and so a lot of the infrastructure that they're using now to combat coronavirus was actually already in place and so we're just seeing them really further use coronavirus as much use to further um expand their surveillance apparatus um i think we should be kind of alarmed about adopting any similar tactics um in the united states certainly i just see where people might you know feel better but once again you have to ask where where would that day to go um who's going to be hold like suppose we require um people to submit you know there's their to take your temperature and submit that to a database to check that every day where is that data going to be held um what would happen um if someone were found like out in public to have a fairly elevated temperature um i could see examples where that could lead to um all sorts of social shaming um that we should be worried about um so i i'm not necessarily an advocate um of adopting similar stances here in the u.s. what do you think you could have been could you have a system where you took somebody's temperatures they walked into buildings and it was it was retained for you know the 30 minutes 15 minutes that you need to to notify somebody and then destroyed and would that satisfy the privacy concerns and help keep everybody more safe yeah i look i get i think again it's the question of who because if it's the government doing it i think you'll have you know some significant pushback uh if it's the the commercial management company for the building uh you know in downtown new york or seattle or whatever city i think you have a different set of privacy issues but but is a matter of uh anonymous uh temperature taking as you enter a building just like a metal detector as you go through it uh i think we are undoubtedly going to see those efforts uh you already have that happening in nursing home facilities for example the staff that comes in to cook or do what they're doing uh are being you know tested as they come in for temperatures uh people delivering medicine or have their temperature taken so i i think that's going to continue um and and will probably grow and and even in some federal facilities i could see uh steps like that being taken but again how long who keeps the data what do they do with it these questions then devolved to existing privacy law uh i feel better about doing that in california than i would in some other states probably with the ccpa and cal etba in place um but you know i i do think we are undoubtedly going to see that and uh it's probably going to be pretty widespread until we actually have an oculation or a vaccine uh where we can solve the problem so for the next 12 to 18 months if we're ever going to have schools open i think you're going to have some manner in means of making sure the teachers are not uh terry let's turn to the to this question of so uh immunity certificates we've seen a variety of countries talk about germany the u k talk about the possibility of once they're sufficiently widespread antibody testing that some people would be given basically certificates saying you get to you're clear you get to go and participate you get to go back to work you get to travel you get to do all these things what's is that is that a a road that we should go down as we think about trying to reopen the economy more safely do we are there concerns about that what do you want to turn it back to you again kathryn what do you what do you think i think there's a couple things we need to keep in mind um as we pursue this potential avenue um one being working at the tanks with antibody tests um which as of right now um are still being worked through there's there's some question about say antibiotic production and people who were asymptomatic um there's some concern about people who had coronavirus that better um but are actually getting it again there have been a few cases where we've seen that um and so the first step is technically making sure that antibiotic antibody tests um actually do prove that a person um is essentially safe to release back into society um but then there's also i think a social question which is how would immunity certificates um would how would that create how would that would would it create social risks essentially in society um and would that be worth um allowing these certificates to allow people to come back in in the hopes of like restarting economic activity um there are countries out there um india has done this other countries as well um that release information about people release far more information about people who test positive for coronavirus in the u.s so we we're in india um actually again article about southern india where they release the addresses of people not the names but the addresses of people who had tested positive for coronavirus well as you can imagine if you have the address it's not that hard for neighbors to figure out and release information about who actually um has coronavirus so i can see something and then there was public shaming that ensued so online they'll see people who are bullying each other um because so-and-so brought the coronavirus into neighborhood and so you want to be careful with immunity certificates that you don't create a similar sort of negative backlash against people who don't have immunity certificates um as well and so i think that is something to be thinking about how do you have anything to add to that in the 1906 polio epidemic in new york city in brooklyn the health authorities nailed signs to the door outside polio uh infected person inside do not enter um hippa has an exemption for disclosure of directory information of related to disease does that mean they can publish a nationwide directory of those who who don't have the disease you know i think it really is going to be a tough question in the application of those certificates will be even uh more problematic if it's only used for example an issued to a teacher and the school district knows that and the teacher can go as a result much less problematic but if it's used to stop you at the border and not let you drive into a state because you don't have one or not enter an airplane then i think we're going to have a much different conversation about the benefit or utility of those in the constitutionality of those um uh certificates as well so in to say that correctly if you don't have the certificate you can't get on the plane or you can't go so depriving you of your rights because you know you haven't uh uh passed the threshold um you know it and i'm sure they'll they'll be the next question of whether those are exclusively digital and can be copied and again you know will we have deep fake certificates to worry about so you know it's it is it is an interesting new world of questions that you know each time you get a week further along in this debate the next series of 10 very hard questions come up and we we have yet to really delve into the answers deep enough to know because it's a very hard thing so i'm going to start turning to some of the audience questions and several of them um are similar to one another so i'll try to um combine some of them please um for everyone who's listening um send your questions via the chat and we will do our best to get to as many as possible and so i'm going to start with with um a question about the harms we've talked a lot about the value of decentralized collection and the harms of government collection so there's a question about what are the harms of government collection why why are we assuming that that's something we should be worried about you know i'll let you start um so i think we have a history in particularly after 9 11 where people found that uh reaction to the threat in the heat of the moment created systems that people viewed is very intrusive to privacy that led to some individuals being wire tapped that shouldn't have been some individuals suffering embarrassment or or other deprivations as a result and i think people don't want to repeat that experience they'd rather have a more thoughtful approach and a balanced approach i i certainly feel like sometimes government overreaches and when there isn't a clear transparent uh roadmap for how the data could be used or would be used for example why hasn't hhs just simply published guidelines that say none of the data collected in the process of fighting the pandemic will be used for any purpose other than uh public health and upon conclusion of this will be destroyed and no other agency will have access to it but it's not hard i just did it why that why isn't that the rule then you'll have trust and with trust you won't have these questions about did the nsa dip into that data for some reason we don't really know or understand uh what about the map of your movements over the past 72 hours or prospectively over the next 32 days what other agencies had access to it so i think those are the harms we're trying to avoid and they're easily avoidable because there really isn't any purpose for any other government agency to have access to this data i agree with al and i would just add in addition to the concerns about which government agency um has access to data anytime so you have like a large quantity of like a database along this scale um you also need to be concerned about what is the cyber security around this database not only who could legally view but what sort of malicious actors might be out there trying to access the data um illegally and how much do you trust the government to implement the proper um cyber security protocols this is an interesting question as as well though about whether or not we trust the app developers so so the cyber security issues um clearly are an issue when we create massive databases or we create new systems of collection wherever they're held so do we have are you do you have any concerns about that Catherine as well with respect to private sector and and information that they are collecting or even information that's collected then held in a decentralized way on our phones does that solve some of the cyber security problems or do they still exist um i think the decentralization to answer the last part of that question first the decentralization um of the data does help um prevent some of the concerns in regards to cyber security and other issues in regards to whether or not i have the same reservations towards private companies uh hosting large amounts of my data that i do towards the government um the answer is both yes and no uh yes absolutely i think in the same way that like if that data is being held by a private company you know hackers and other malicious actors have the same incentives to try to get and access that data um i do however think that you know if for some reason there is a breach or there is um misuse of that data by a private company there are more um legal um and market resources for um punishments and incentives to prevent um them from doing so that doesn't mean that companies don't have the incentive it can't hide it in some way um i think the there's been a lot of debate about how much we should trust large companies like facebook with data in the past couple years um and that debate has by no means been resolved um so the concerns are still there um but i do think that there are recourses that aren't necessarily there with the government when it comes to being like oh no you did something we don't like let's find a way to either legally punish you or to withdraw market support to have customers say you know what i'm not comfortable with that i'm going to stop using your products um which you can't opt out to a different company when it comes to the government i'll let you weigh in here and you also you previously mentioned the ccpa i'm wondering if there's lessons about from the ccpa that apply to this as well and if there's anything that this conversation tells us about um the need for stronger federal privacy legislation as well yeah well look i think you know just to follow with the catharine's point that government has sovereign immunity um google and apple don't so they can be sued they're under either the school as an fdc consent decree there's supervision and most importantly they already have the data we're talking about repurposing data that's had into a more uh an ability to share it with the government which they otherwise would not be able to do and the users consenting to the sharing of that data in the first instance so i think that's a really important distinction and and if you trust enough that they have the data to begin with uh it's not uh inconceivable that having them handle it for this purpose uh you should trust as well i think that the ccpa and calepa historically have moved the ball greatly forward for privacy protection and the use of data uh uh and and really sets the path for a more national discussion on it unfortunately i am not an optimist never getting there um but but you know between gdpr and ccpa i think all of the providers platforms telcos that have looked at this pandemic issue have approached it through that prism to begin with and asking the questions of can i share it would it be limited in purpose if i did and then could i be sure that happens will users have choice will it be transparent and so i think it's set a model that is normative now even if it isn't a national requirement now so so we owe something to do that outcome and the companies that have all built their processes to meet ccpa are applying them here when it comes to thinking through how do they do something like the pandemic response that in proposals that they've they've had to deal with so i want to stay on the question of decentralization there were there were some audience questions about this as well and going back to that to that conversation when we talk about decentralization just unpacking a little bit more about what we mean by that so when when the when we when the system is decentralized what and the government obviously has the health information and the our phones keep the proximity location information there has to be some sharing between the two how does that work and who gets access to that data as the data is shared or is it is it truly that private sector doesn't get the health information and the public sector truly doesn't get the proximity or location information um yeah that's exactly right the the information resides on the device and so who you come in contact with and the alerts that are generated from it uh are all uh off of a centralized approach to that so there's no server sending out those alerts it's the device triggering the other device uh for that warning and the companies don't see that because it's on your device and the government doesn't see that uh because that's not visible to them but the one-to-one relationship between the infected user and the government that led to the denomination of that user the triggering of the Bluetooth signaling uh as an infected person is known to the government but they are known in any event so it's it's not new data it's it's new data that is actionable in a system that the government can't then see the results of um there are those who argue uh you there are things you can search very quickly and read about this in terms of whether it should be mandated so the government knows who was in proximity and then can take those steps mandatorily to do it uh I think the consensus is that's not a system that people want and so the decentralized approach leaves it in the hands of the individual to do the right thing rather than in the hands of the government to compel an outcome that may not be right in your individual case in any event so I think that's that's the point great so we um there's there's some wonderful questions that we unfortunately have not had a chance to get to but I do want to give both Catherine and Al you a chance to provide any last minute thoughts particularly about broad principles that we should be thinking about as we're as we're kind of struggling with and we will continue to struggle with these really critical and yet incredibly difficult issues Catherine I'll let you start yeah um so first off I would just like to reiterate once again saying thank you to you Jim um and you Al and also the people at New America for hosting this in regards to like broad principles I think people should keep in mind going forward I think when it comes to thinking about potential tools to use in the fight against the coronavirus we need to think very we need to pay a lot of attention to the technical design behind a lot of these these tools and so always keep in mind what is the data being collected is who's going to fold the data how long will the data be held and what type of data is this metadata is this data about my individual life and so without asking those questions it's really hard to actually compare and contrast all these different types of surveillance apparatus and apps that are actually being designed and so while it might seem to everybody like oh every government is doing the same type of surveillance when it comes to coronavirus there's actually a lot of nuance to be um delved into and debated and so always keeping those questions in mind and going back to the most basic like what is the data where is it going to be held how long who can see it really helps you begin to parse out which solutions you agree with I'll let you have the last word oh I love that um look I think trust and transparency are critical for this system to work uh people need to understand there's no long tail to the data in the hand of the government if you just don't know where your data is going to end up afterwards you're just not going to share it and none of these systems will be very effective so transparency is key second I think you have to listen to the public health people the epidemiologists those who need data so that you know what data they need instead of throwing a bucket full of data at them and just drowning them in useless information so be really mindful of the efficacy of what's proposed and does it work and and and even if we're just trying it to determine if it works measure it at the end of the day and don't do it just for the sake of doing something it's much more important to do the right thing and lastly I would say that that at the end of the day privacy is going to be just as important coming out of this as it was going in it and there's a lot of lessons to learn from what's happened over the last few days and few weeks and and we should learn those lessons there are many flaws in the HIPAA rules in terms of who gets access to what data and how in an emergency and there are many flaws in in in the lack of knowledge about where that data ends up and what remedies users have at the end of the day so that's that's another discussion for another time but I I hope we don't lose sight as we go along these risks and I hope people keep raising the risks and challenging the accepted authority on both the technology and the law so we end up with a robust debate before we step off the cliff together well I can't think of a better way to end thank you so much Catherine thank you so much Al thank you Slate thank you New America for putting on this great podcast thank you all thank you stay safe