Department of Justice Seeks Dangerous Expansion of Authority

What the Administration is hoping you miss during the Coronavirus pandemic

March 27, 2020

The outbreak of COVID-19 is shining a light on the limitations of the US economy and healthcare system, which need massive improvement to handle a crisis of this magnitude. It has also spurred behind the scenes efforts by the White House and law enforcement agencies to expand their judicial and surveillance authority. These attempts set a dangerous precedent, as they seek to monitor our locations and access private information while effectively foregoing the passing of necessary progressive legislation. 

Writing in Verdict, Cornell Law professor Michael C. Dorf calls on the United States government for the suspension of habeas corpus and the ordering [of] state and local officials to enforce federal law. By which Dorf means, suspend our individual rights in favor of the authoritarian responses demonstrated by China and Italy to halt the pandemic. 

Dorf’s suggestion does not come from a lone voice in a corner of the internet. In recent days, the Department of Justice has suggested exactly that as a response to the coronavirus outbreak. Late last week, Politico reported that the DOJ urged Congress to pass legislation allowing them to “coerce chief judges to detain people indefinitely without trial during emergencies,” in addition to other new powers. 

To be fully appreciated, these requests must be looked at together. In the last few weeks, the Senate and some state and local governments have proposed increased surveillance as a way to protect individuals from harm. On March 5,  bipartisan legislation called the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT)” Act hit the Senate floor. While intended to prevent illegal sex trafficking, it would abolish end-to-end encryption, effectively allowing all of our online chats to be monitored by law enforcement agencies. The declaration of a state of emergency due to COVID-19 has freed up many state and local governments to use expansive surveillance measures to detect fever and monitor our geo-locations. Private companies, like Clearview AI, are currently negotiating with federal agencies to provide assistance through the same facial recognition technologies which are the subject of scrutiny from civil liberties groups and presidential candidates

Under the guise of harm mitigation, the state and law enforcement agencies are attempting to acquire easy access to private information, such as individual health records and precise geo-locations. Privacy and civil rights advocates are already sounding the alarm around these practices in the COVID-19 responses of other countries. In Italy, local authorities are analyzing location data collected through citizens’ mobile phones to monitor compliance with government lockdown orders. In Israel, citizens’ precise locations are being used “to identify and locate sick people and carriers who could infect thousands.” 

In lockstep with these countries and with the DOJ’s request, New York Governor Andrew Cuomo recently enacted a law that would allow New York state to suspend local regulations in order to contain the pandemic. Law enforcement officials in Kentucky surrounded the home of someone with COVID-19. These forms of enforcement would make any government intervention, such as the effort to restart the economy at the expense of public safety, easier to facilitate. In the case of the COVID-19 outbreak, these collective judicial and surveillance capacities taken to their logical end may allow the government to assess citizens’ health records. They could use that information to authorize low-risk individuals to return to work and detain or punish high-risk individuals who do not comply with government lockdowns. If the EARN It Act were passed, they would also be able to survey any digital conversations intending to organize opposition to those acts. 

These are easier options than actually building institutions or policies that would protect the public in the long run, like strong healthcare systems and employment protection programs. We do not need to make this trade. We can have personal security from harm without sacrificing our freedom. We can have progressive policies to assist us through this difficult time, and any which may follow, without turning to drastic surveillance policies. Now, more than ever, it is important that we ensure this health and economic crisis translates into resources for the many, not policies used to achieve partisan goals.

We are working to help pass progressive policies on Capitol Hill, and to reject these authoritarian measures that may come at the cost of our privacy and civil rights. In this time of crisis, we must do both.

Help us continue our work with a quick
one-time or monthly donation.