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Last week,Gov. Jared Polis activated the Colorado National Guard and Denvers Mayor Hancock employed curfews.After two months of COVID-19-related stay-at-home orders, Denver went back into lockdown.These moves were triggered by violence in Denver, part of nationwide unrest spreading from George Floyds death caused after a Minneapolis police officer held his knee on the mans neck as he cried that he could not breathe.

Currently, Colorados National Guard reports to the governor, deployed in a law enforcement function, and isunarmed, carrying only defensive weapons.However, over the weekend, President Trump inserted himself into the National Guard discussion bytweeting:just spoke to [the Governor of Minnesota] and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts the shooting starts . . .Then on Monday afternoon during a teleconference with governors, Trump reportedly stated: I wish we had an occupying force.After the teleconference, President Trump speaking from the Rose Garden declared if governors were unable to end the violence, he would send in the military to do the job for them.

Are Americans ready for federal troops regardless of which party controls Washington to occupy our cities and use force on our citizens to quell disorder?After months of state and local governments utilizing expanded authorities to essentially quarantine their citizens in response to COVID-19, the latest crisis begs the questions: 1) does the president have the authority to order a military response to domestic unrest, and 2) what are the militarys rules for use of force domestically can the military use deadly force in response to looting?

Does the president have authority to use military force domestically?Yes, but it rarely has been utilized in U.S. history and is subject to both the Posse Comitatus Act and the Insurrection Act.While the president is the commander-in-chief of the armed forces, this authority is constrained by Congress and the courts by the separation-of-powers doctrine established by the U.S. Constitution.

Congress limited the presidents authority to use active-duty military forces (so called Title 10 forces) for domestic law enforcement purposes in the Posse Comitatus Act by making it unlawful for the military to execute the laws . . . except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.Thus, the president must point to a Posse Comitatus Act exception before deploying federal military forces or federalizing a states National Guard to respond to domestic unrest.

One such Posse Comitatus exception is the Insurrection Act, which authorizes federalizing the National Guard or ordering active-duty forces to put down civil disturbances subject to three key conditions.First, after receiving a request for assistance from a governor or state legislature to suppress [an] Insurrection pursuant to10 U.S.C.251.This provision was last invoked 28 years ago during the Los Angeles riots.While current unrest is a rapidly developing situation, it is unclear whether any governor or state legislature will make such a request.The next two provisions allow a president to act absent a request from a governor or state legislature.First, when the president finds it necessary to suppress an insurrection, domestic violence, unlawful combination or conspiracy.Second, the president may use military force when unrest impedesfederal or state law.But, no president has federalized National Guard forces or utilized active-duty forces domestically absent a request from a governor or state legislature since Presidents Eisenhower and Kennedy used these provisions to enforce civil-rights laws in the 1950s and 1960s.This includes past unrest in Ferguson, Baltimore or after Hurricane Katrina.Ultimately, presidents rarely invoke the Insurrection Act, limited to extraordinary circumstances.

If active-duty forces or federalized National Guard units are deployed into American cities, are troops authorized to use force on looters?Not likely.The military utilizes Standing Rules for Use of Force (SRUF), not Standing Rules of Engagement (SROE), when responding to civil unrest.SROE govern military operations where either law enforcement and civil authorities are nonexistent or resistant to U.S. military presence (e.g., combat).SRUF, conversely, govern law enforcement and self-defense missions allowing for domestic legal considerations such as search, seizure, arrest and detention.Clearly, constitutional standards such as the Fourth Amendment apply during unrest on U.S. soil, and any government actions violating constitutional protections could jeopardize criminal prosecutions.SRUF restricts force to be used only as a last resort and minimized as much as possible.To be sure, deadly force is only utilized after all lesser means have failed or cannot be reasonably employed.Lastly, SRUF imposes a reasonable requirement requiring force used to be reasonable in intensity, duration and magnitude to counter the treat.

While SRUF limits force to self-defense or protecting specific assets, such as national security assets or national critical infrastructure, shooting looters clearly violates the governing rules for the use of force on U.S. soil.

Toren Mushovic, a health care attorney and chief operating and compliance officer ofIMMUNOe Health & Research Centers in Centennial, also serves as a judge advocate for the United States Navy Reserves.The views expressed here are the authors personal views and do not necessarily reflect those of the Department of Defense, the United States Navy, or any other department or agency of the United States Government.

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Can the president really send in the troops? | Opinion - coloradopolitics.com

The doctrine of qualified immunity too often gives police miscreants a free pass

May 29th 2020

ON MAY 25TH police officers in Minneapolis responded to a shop assistants complaint about someone passing a counterfeit bill. They arrested George Floyd, a 46-year-old black man, but instead of putting him in the back of a squad car, an officer pressed his knee to Mr Floyds neck for nearly nine minutes. Mr Floyd complained that he could not breathe, called out for his late mother and eventually stopped moving.

Mobile-phone footage of Mr Floyds death emerged one day later, and for the ensuing four days, violent protests have wracked Minneapolis. Derek Chauvin, the officer who held Mr Floyd on the ground, was arrested on the afternoon of May 29th and charged with third-degree murder and manslaughter, and may face further charges for what certainly looks like excessive and unjustified force.

That makes him an outlier: police rarely face criminal charges for actions that might land an ordinary person in the dock. The protesters and rioters on the streets of Minneapolis see this as part of a pattern of institutional racism, in which black victims of police malpractice rarely achieve justice. As a matter of course, prosecutors work closely with police, and are often reluctant to bring charges against them. That leaves civil actions as the only form of redress available. But police enjoy a degree of legal protection from lawsuits, courtesy of a doctrine known as qualified immunity.

Federal law gives Americans the right to sue government officials who violate their constitutional rights. But in Pierson v Ray, decided in 1967, the Supreme Court held that public officials who commit good faith rights violations are entitled to qualified immunity, intended to shield them against frivolous lawsuits.

In practice, as the Supreme Court explained in 2015, that means that government employees cannot be sued for actions undertaken in the course of their duties, so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. That sounds sensible enoughbut over time the clearly established part of the doctrine has almost completely subsumed the reasonable person part.

For instance, on September 10th 2013 police officers in Fresno, California searched the homes and business of two men suspected of running an illegal gambling operation. The men allege that police seized $151,380 in cash and another $125,000 worth of rare coinsbut only reported taking $50,000, and pocketed the rest. The men sued, but the Ninth Circuit Court of Appeals dismissed the case.

The court held that it need not determine whether the mens constitutional rights had been violatedie, in this case whether the officers actually had stolen the property in question, which would have breached the Fourth Amendment, which promises protection against unreasonable searches and seizures. Because there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant, the two men were not entitled to relief (though the court noted, near the end of its brief ruling, we sympathise with the Appellants).

Or consider the case of Malaika Brooks, who was seven months pregnant, and whom police dragged from her car in front of her 11-year-old son, and tasered three times in less than a minutebecause she declined to sign a traffic ticket. A panel of federal judges ruled that even though Ms Brookss violationdriving 12mph (19km/h) over the speed limitwas not serious, and she did not pose even a potential threat to anyones safety, the officers actions did not violate clearly established law. Small wonder that Sonia Sotomayor, the Supreme Courts most ardent Fourth Amendment champion, called qualified immunity, as most courts have come to interpret it, an absolute shield for law-enforcement officers, gutting the deterrent effect of the Fourth Amendment.

Qualified immunity is hardly the only reason why police officers rarely face criminal penalties for actions such as stealing cash and coins, or repeatedly tasering a pregnant womanactions that an ordinary citizen would almost certainly have to answer for in court. Criminal cases have to be prosecuted; prosecutors work closely with police; police tend to close ranks around their own; and a prosecutor who made enemies of his city or countys police force would find it hard to do his job.

Police unions tend to back their brother officers. In 2014 the union in New York staunchly supported an officer caught on video choking an African-American man to death for allegedly selling single cigarettes on a street corner (sacking that officer took five years). That makes recent statements from multiple police unions expressing outrage at what happened to Mr Floyd all the more extraordinary.

The Supreme Court is currently considering whether to hear several cases concerning qualified immunity and its excesses. A diverse range of supportersnot just the usual suspects, such as the American Civil Liberties Union and the libertarian Cato Institute, but also conservative Christian groups, such as the Alliance Defending Freedomis urging the justices to take another look at the doctrine. Effective policing requires community support, and police officers who place themselves above the law will never get it.

Editors note (June 1st 2020): This article was amended to make clearer that qualified immunity protects police from civil actions, not criminal charges.

Read the original here:
Why the prosecution of a Minneapolis police officer is such a rarity - The Economist

What does qualified immunity look like?

In practice, qualified immunity makes it difficult for people to bring suits against police officers, to say nothing of winning them. Consider the case of Malaika Brooks:

In 2004, Ms. Brooks, a black woman who was seven months pregnant, was pulled over by the Seattle police for speeding while driving her 11-year-old son to school.

Ms. Brooks believed she had been wrongly stopped and refused to sign the ticket, thinking, mistakenly, that her signature would be an admission of guilt.

The officers then threatened to throw her in jail, twisted her arm behind her back and tased her three times first on her thigh, then in an arm and then in her neck before dragging her into the street, laying her face down and cuffing her.

Ms. Brooks sued the officers, and in 2011 a federal appeals court argued that a reasonable person could conclude that the officers had indeed violated her constitutional rights. But those same judges dismissed her case, arguing that no precedent had clearly established that tasing a woman in Ms. Brookss circumstances was unconstitutional at the time.

Ms. Brookss story is far from unique: An investigation by Reuters found that in the past 15 years, the courts have shown an increasing tendency to grant police officers immunity in excessive-force cases. The Supreme Court, for example, has denied immunity only twice in its 30 most recent relevant cases, according to George Will.

[Read the investigation: For cops who kill, special Supreme Court protection]

People all across the political spectrum, actually. Justice Sotomayor is arguably the Supreme Courts most left-leaning member, but her concern about police impunity is shared by one of the courts most conservative members, Justice Clarence Thomas.

From the right: In The Wall Street Journal, Robert McNamara, a member of the Federalist Society, raises the case of Shaniz West, an Idaho woman who gave her house keys to the police to search for her ex-boyfriend, who was wanted on firearms charges. He wasnt inside, but the police bombarded the house with grenades and shotguns until it was uninhabitable, leaving Ms. West homeless. Ms. West sued the officers for violating her Fourth Amendment rights, but her claim was rejected because of qualified immunity.

Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument, Mr. McNamara writes. Since no court has considered it, qualified immunity means Ms. West loses. As long as an officials conduct is uniquely outrageous, its impossible to hold him liable for it.

From the left: In the New Republic, Matt Ford notes the case of three California police officers who were accused of seizing more than $275,000 in rare coins from a persons house while reporting that they had seized only $50,000. The federal Court of Appeals for the Ninth Circuit said the alleged theft of $225,000 was deeply disturbing, but it dismissed the suit anyway because it said no precedent had ever established that officers cant steal on the job.

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The One Police Reform That Both the Left and the Right Support - The New York Times

Since COVID-19 began to spread across the United States, federal grand juries in districts around the country have stopped meeting, but prosecutors have continued to issue grand jury subpoenas, including in high-profile investigations. Without sitting grand juries, however, do prosecutors still retain the subpoena power? The answer is unclear, and anyone who receives a subpoena these days should take a close look at its validity.

Going back to basics, a typical federal grand jury subpoena for documents commands its recipient to appear in front of the grand jury on a specific date and timethe return dateand to bring with him or her certain specified documents. Notwithstanding that command, however, subpoenas often state that a personal appearance is not required if the requested records are delivered to a particular government agent any time before the return date.

Although subpoenas are issued under the authority of the grand jury, it is the United States Attorneys Office that plays the leadership role in grand jury investigations. As Judge Weinstein explained in an opinion summarizing the role of the grand jury, [i]t is the United States Attorney who gathers the evidence for later presentation to the grand jury. He calls and examines witnesses, presents documents, explains the law, sums up the evidence and requests an indictment.

Consistent with the United States Attorneys leadership role in investigations, grand juries play virtually no role in the preparation and issuance of subpoenas. Rather, Rule 17 of the Federal Rules of Criminal Procedure says that the court clerk is required to give prosecutors a signed and sealed subpoena that is otherwise blank so that prosecutors can fill it in with the necessary information, such as the name and address of the recipient and the appearance date and time.

Most recipients of grand jury document subpoenas never even see the grand jury. For the most part, recipients provide documents ahead of time to the assigned government agents. Against this background, it comes as no surprise that even without grand juries meeting regularly (or even meeting at all), federal prosecutors have felt comfortable sending out subpoenas, collecting records, and moving their investigations forward.

And yet, even despite the control that federal prosecutors exercise over the grand jury process, a quick look at the standard language that appears on subpoenas leaves no doubt about the importance the grand jury retains. For example, a pre-COVID-19 subpoena to the University of Kansas in the recent case involving allegedly corrupt recruiting within NCAA basketball states, in standard language, with capital letters for emphasis: GREETINGS: WE COMMAND YOU that all and singular business and excuses being laid aside, you appear and attend before the GRAND JURY of the people of the United States for the Southern District of New York. The subpoena gives the address of the courthouse and the date and time of the required appearance, and also identifies the alleged violations being investigated. The subpoena further provides that the recipient is not to depart the Grand Jury without leave thereof, or of the United States Attorney, and that [f]ailure to attend and produce any items hereby demanded will constitute contempt of court and will subject you to civil sanctions and criminal penalties, in addition to other penalties of the Law.

Even if recipients of subpoenas never see the grand jury, the subpoena form thus uses the existence of the grand jury to highlight for the recipient the seriousness of the matter, the necessity of compliance (WE COMMAND YOU, in capital letters), the importance of the GRAND JURY (again in capital letters), and the consequences of non-compliance (contempt, civil sanctions, criminal penalties, and more). The grand jurys existence and ability to sit (with a quorum) on a particular date, in the language of the standard subpoena, is thereby an instrumental part of the power of the subpoena to obtain compliance from its recipient.

What happens, then, when a federal prosecutor issues a subpoena listing a return date when the prosecutor knows or should know that no grand jury will be available, as appears to have happened on a regular basis over the past few months? In all likelihood, the recipient of such a subpoena simply produces the records in advance of the return date. But is such a subpoena valid in the first place? To the extent the subpoena misrepresents to the recipient that a grand jury will be available and standing by at a particular date and time, waiting to receive records, does that misrepresentation invalidate the request? If the recipient produces records anyway, should those records be suppressed and excluded from future cases?

There are no clear answers to these questions, but the existing case law suggests there may be more of an issue here than the Department of Justices business-as-usual approach in recent months otherwise signals. Going back to Judge Weinstein, his opinion in United States v. Kleen Laundry & Cleaners, Inc. addressed the question of whether evidence should be suppressed where no grand jury was sitting at the time the prosecutor issued the subpoena that led to the production of the materials at issue. Judge Weinstein found that suppression was not warranted, because the absence of a sitting grand jury at the time of issuance is not disturbing since the return date was set for a day when the jurors were normally in session. (Emphasis added.)

In recent months, however, COVID-19 has flipped Kleen Laundrys scenario on its head, as federal prosecutors have issued subpoenas in which the return dates are set for days when the grand jurors are not going to be sitting.

Few authorities address this precise scenario. Starting with the Department of Justice Manual for federal prosecutors, Section 9-11.142 states, for financial record subpoenas (which have some unique rules), that [s]ound grand jury practice requires that, among other things, "[t]he subpoena be returnable on a date when the grand jury is in session. This statement of sound practice mirrors the standard at one time adopted by the ABA, stating, [a] subpoena should be returnable only when the grand jury is sitting. There is some question of whether a grand jury could be said to be in session when grand jurors have been summoned and empaneled, but do not physically appear for their duty because of some emergency (such as a global pandemic). But even if a grand jury is technically in session under such circumstances, and is simply unable to muster a quorum, the problem is still the prosecutors representation on the face of the subpoena that a grand jury will be available on the return date when the prosecutor knows or should know that is not true.

Turning to the case law, the Justice Manual cites United States v. Hilton, 534 F.2d 556 (3d Cir. 1976), which stated, in the somewhat different context of a forthwith subpoena (meaning a subpoena demanding immediate compliance), that it was improper for the prosecutor to make the subpoena returnable at a time when no grand jury was in session, because [i]rrespective of the motivation of the prosecutor, the hard fact is that a misrepresentation was made: the subpoena commanded a forthwith presentation to the grand jury of materials at a time when the United States Attorney's office may or should have known that the grand jury would not be in session to receive the documents forthwith. The Third Circuit explained that [u]nder these circumstances, the grand jury subpoena is no substitute for a proper application before a judicial officer for a search warrant, and that the conduct of the government represented an egregious circumvention of Fourth Amendment procedures.

The Third Circuit was not even the highest court to review this issue in 1976. That same year, in an opinion by Justice Powell, the Supreme Court famously decided in United States v. Miller, 425 U.S. 435 (1976), that depositors do not have a valid Fourth Amendment interest in personal account information held by banks of other financial institutionsthe so-called third-party doctrine. Somewhat less famously, though, Miller also raised but declined to address the issue raised in this column: Whether an ordinary document subpoena that was returnable on a date when the grand jury is not in session is defective and requires suppression of the evidence obtained.

In the Fifth Circuits underlying opinion in Miller, which the Supreme Court reversed on Fourth Amendment grounds, the Fifth Circuit had held that a grand jury subpoena issued by the United States Attorneys office, for a date when no grand jury was in session, . . . does not constitute sufficient legal process within the meaning of applicable Supreme Court precedent, such that the defendant in the case was entitled to a new trial at which the improperly obtained records would be precluded. The Supreme Court in Miller, however, expressly declined to address the question of whether the subpoenas at issue were defective, finding that that because Miller had no Fourth Amendment interest in records held by a third party, there was no basis for suppression.

Justice Powells papers, which are preserved in a manuscript collection at Washington & Lee University, reflect some uncertainty in his chambers on the question of the subpoenas validity. In a preliminary memo describing the Fifth Circuits holding, both Justice Powell and a law clerk appear to have made margin notes reflecting their initial approval of the Fifth Circuits holding that the subpoenas were defective in various respects, with the clerk writing [t]hat certainly sounds correct to me, and Justice Powell writing that it [d]oes make sense. In a subsequent bench memorandum, however, a different law clerk included a footnote stating that a survey of the case law suggested there was nothing to the Fifth Circuits holding that the subpoena was defective, and Justice Powell at that point appeared to agree, although the focus of the concern for the later law clerk, at least, appeared to be the fact that the United States Attorneys Office, rather than the grand jury itself, had issued the subpoena (which is a non-issue). In any case, by expressly declining to decide the issue, and by resolving the case on Fourth Amendment grounds alone, the Supreme Court arguably left in place the Fifth Circuits holding that there was a defect in the subpoena.

On the state side (where somewhat different rules govern), the First Department of the New York Appellate Division, in Rodrigues v. City of New York, held that prosecutors were not entitled to absolute immunity with respect to the claim of abuse of process based on the prosecutors unauthorized issuance of grand jury subpoenas at a time when no grand jury had been convened to hear evidence against plaintiffs. In strong language, the First Department explained, [s]ince no Grand Jury was convened, it is clear that the prosecutor defendants stepped outside the scope of their authority in using the device of a Grand Jury subpoena to conduct their own investigation. Thus, insofar as the issuance of the subpoenas is concerned, these defendants acted in the absence of authority and are therefore not entitled to absolute immunity.

From this muddle of authorities, it seems plain that the best practice is for prosecutors to make subpoenas returnable at a time when an actual grand jury is sitting and when the grand jurors are expected to be present, rather than making subpoenas returnable on dates when they know grand jurors will not be present in the grand jury room. To the extent prosecutors need to obtain evidence sooner than such an approach would allow due the current global pandemic, prosecutors retain a number of tools to achieve their goals, including judicially authorized search warrants. Thus, for purposes of subpoena practice, during the period in which grand juries are not meeting due to COVID-19, return dates should be set for dates when the prosecutors have some good-faith basis for thinking the grand jury will be back in the courthouse.

Finally, to the extent prosecutors have already issued arguably defective subpoenas over the past few months, what is the remedy? In ongoing investigations, it may be difficult for defendants ultimately to seek suppression, particularly where prosecutors can represent that the records would inevitably have been obtained at some later date with a corrected subpoena, and also in light of the fact that compliance with the subpoena arguably constitutes a waiver of any objection to defects the subpoena may contain. To the extent recipients of subpoenas have not yet produced records, however, there may be a basis, in appropriate cases, to question any too-soon return date, and to insist on a return date when grand jurors will actually assemble.

To read more from Brian A. Jacobs, please visit http://www.maglaw.com.

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Quorum-tine: How COVID-19 Affects the Validity of Federal Grand Jury Document Subpoenas - Forbes

The novel coronavirus is giving rise to novel surveillance tools. While they can help contain the sweep of COVID-19, the monitoring and categorization of citizens could survive the pandemic with undue invasions of privacy. Legal safeguards are necessary to make sure that doesnt happen.

Innovative hardware and software, rushed into production by profiteers, are aimed at recording and storing peoples physiological functions, locations, and immunity levels. As with any new technology, error rates are high, and the consequences of mistakes will be magnified if used to exclude non-immune people from jobs, housing, courthouses, and public transportation. And unless information is automatically erased or sequestered, medical records could be compiled into databases of personal files that are accessible to law enforcement and immigration authorities.

The virtue of monitoring is self-evident during the crisis; less obvious are the longer-term dangers of doing so. With no treatment or vaccine, self-quarantine, and social distance are primary means of curtailing the spread. If people dont know theyre sickand neither do their fellow workers, diners, shoppers, passengers, theatergoers, sunbathers, gym users, and the likethe disease cannot be contained as public spaces reopen.

This is a matter of security. As seen after 9/11, public acceptance of extraordinary measures soars in the moment, then persists long after the need abates. The Patriot Act, which Congress passed hastily in 2001, created exceptions to legal protections that had been enacted in the 1970s. Government agencies had been violating the Fourth Amendment by spying on antiwar campaigners, civil rights leaders, and other political activists. But its been nearly two decades since the 9/11 attacks, and Congress has applied only minor patches to the holes the Patriot Act tore in the fabric of civil liberties.

The same thing could happen now. The COVID-19 pandemic has spurred particular interest in three areas of data collection: temperature-taking before admitting people to certain places, testing them for the virus, and tracing their contacts and testing them for antibodies to issue immunity passports, a prospect raised by officials in the U.S., Germany, and the U.K.

There are pluses and minuses in each of these areas, according to a series of carefully drawn white papers by the American Civil Liberties Union. They are sensibly balanced and worth summarizing. (Full disclosure: I donate to the ACLU.)

One,temperature checks as a price of admission might pick up infected individuals, but also generate false positives and false negatives. Many with the virus dont have a fever, and many who do, dont have the virus. As Jay Stanley of the ACLU observes, skin temperature can be elevated by sunburn, exercise, menopause, cancer, and other non-COVID conditions. And readings from the skin are less accurate than core body temperature taken by oral, anal, or ear thermometers.

Furthermore, heat emanating from skin cant be reliably determined unless the measuring device is repeatedly calibrated and held close to a person who stays still. Stand-off sensors and drones, which are being advertised as unobtrusive means of checking heart and breathing rates as well as temperature, do not work well when surveying groups of moving individuals, Stanley says. He notes that the Transportation Security Administration (TSA) considered, then suspended, a plan called Project Hostile Intent designed to identify potential terrorists by checking temperatures, heart rates, eye movement, and facial movements. Something of the kind could be revived under the guise of COVID screening, which risks being what Stanley calls public health theater.

Two, contact tracing by real human beings can work, but automated systems use cell phone locations that are imprecise. They also threaten privacy if their location logs are kept in a central database, according to Neema Singh Guliani, the ACLUs senior legislative counsel. She urges that any such tools be voluntary and their use transparent. The information, already collected by some companies, can reveal where a person goes to church, shops, works, attends meetings, visits medical facilities, or has late-night visits with someone outside the home. The results can be so extensive that the Supreme Court ruled in 2018 that under the Fourth Amendment, police need a warrant first. But the Fourth Amendment generally applies only to government, not private, companies.

Since the CDC recommends at least six-foot distances from someone who might be infected, most phone data are inadequate. Connections with cell towers can determine an area or a direction of movement, but not a precise location. A phones GPS receiver can fix a position within six feet only with strong signals from multiple satellites; a more common margin of error is fifteen to fifty feet. Nor can signals usually be picked up inside, so its no good for contact tracing if youre in a store, office, or theater.

China has begun using QR codes that citizens must scan with their phones to get into buses, taxis, subways and some buildings. That tells authorities when someone enters but not who is close by unless combined with Wi-Fi and Bluetooth connections.

The most promising method so far appears to be the Exposure Notification API (application programming interface) developed by Apple and Google to allow state health authorities to offer people an app that would tell them if they came close to an infected person. Use is purely voluntary, according to Jason Cross, writing in Macworld. You would request the states app and could disable it at will. People testing positive would take the initiative to register through the app, but with no identifying information.

If youre not ill and you sign up, and you get close to a virus carrier whos also in the system, your Bluetooth connections will trigger a text giving the date and length of your encounter, but not its location. Cross reports that the information is anonymizedonly a phones Bluetooth code, which changes every several minutes, would be uploaded to a database, with no personal identification. Once a person tests positive, she could authorize the disclosure of her proximity information from the previous fourteen days. Again, no names and no locations. Cross writes that three states so farAlabama, South Carolina, and North Dakotahave decided to try the system. Others might prefer one that identifies participants so health authorities can follow up.

One flaw, the ACLU notes, is that safe contact might be flagged. Guliani reports that in Israel, where security services have used location data to enforce quarantines, a woman who merely waved at her infected boyfriend from the street was told to stay home. If Bluetooth penetrated walls, neighbors in an apartment building might be falsely alerted. So might drivers near pedestrians, although the Apple-Google system would report the durations brevity.

This would work only with widespread enrollment. Yet about 40 percent of Americans over 65 and 30 percent of those earning under $30,000 a year do not have smartphones, Guliani says. And reliance on voluntary cooperation is both bad and good: bad because most people probably wont participate, good because coercive health tactics often backfire, she notes. Individualistic, anti-government impulses run strongly through American society. Witness those protesting stay-at-home orders.

Nevertheless, what seems voluntary can easily become required if landlords, employers, or government officials demand testing or enrollment before renting, hiring, or granting benefits. Current laws probably dont prevent such compulsion.

Three, immunity passports would also be highly problematic for similar reasons. Esha Bhandari, an ACLU senior staff attorney, argues that since antibodies true level of protection from COVID-19 is not yet known, relying on positive tests could produce complacency, endangering both individuals and institutions.

Requiring an immunity certification for work might divide populations between the haves and have-notsthose with antibodies and those without. It could exacerbate racial disparities, Bhandari says, since low-wage employees in jobs that cant be done at home are disproportionately black and Latino. The non-immune might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot.

Therefore, immunity passports could also create perverse incentives to contract COVID-19 for people who are the most economically insecure, Bhandari argues. This is not as fanciful as it sounds. It happened in New Orleans during a yellow fever epidemic in 1847. Without immunity to yellow fever, newcomers would have difficulty finding a place to live, a job, a bank loan, and a wife, writes Sarah Zhang in theAtlantic, Employers were loath to train an employee who might succumb to an outbreak. Fathers were hesitant to marry their daughters to husbands who might die. Slaves who had acquired immunity were worth 25 percent more, she says.

Finally, the ACLU worriesas it always doesthat personal information collected in a good cause will be aggregated by corporations and government, in this case forming what Bhandari calls a health surveillance infrastructure that endangers privacy rights. Existing laws probably dont prevent data sharing by private firms, so opportunities are legion for intense discrimination in work, housing, travel, immigration applications, and other areas.

A good deal of legislation is needed to channel data and set limits. Otherwise, once the pandemic passes, Jay Stanley argues, routine and suspicionless collection could make physiological surveillance the norm. We dont want to wake up to a post-COVID world where companies and government agencies think they can gather temperature or other health data about people whenever they want.

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Protecting Public Health and Civil Liberties During a Pandemic - Washington Monthly