The tension between private liberty and public health in the United States is hardly new. Americans have demanded the latter in times of plague and prioritized the former in times of well-being since at least the colonial era. Politicians and business leaders have alternately manipulated and deferred to that tension for about as long.
In 1701, members of the Massachusetts Bay Colony fought a yearlong political battle to enact the nation’s first quarantine laws, against opponents who claimed the measure would unduly harm businesses that relied on the ports. In 1918, during the flu pandemic, the mayor of Pittsburgh brought a ban on public gatherings to a swift — and premature — conclusion over concerns about a coming election.
In 2020, the same tension is back with a vengeance. The nation is under siege from the worst pandemic in a century, and the United States is on track to suffer more deaths than any other industrialized country from SARS-CoV-2, the medical name for the novel coronavirus.
Attorney General William Barr last Monday ordered Justice Department lawyers to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.” He was talking about state and local orders closing businesses and requiring people to shelter in place to help combat the spread of the virus. “The Constitution is not suspended in times of crisis,” Mr. Barr said in an April 27 memo.
Yet the same Mr. Barr, early in the outbreak, was seemingly so concerned about its impact, that he proposed letting the government pause court proceedings and detain people indefinitely without trial during emergencies — effectively suspending the core constitutional right of habeas corpus.
Temporary limitations on some liberties don’t seem to concern most Americans at this moment. Polls show that 70 to 90 percent of the public support measures to slow the spread of the virus, even if they require temporarily yielding certain freedoms and allowing the economy to suffer in the short run.
Indeed, it is wealthy and powerful conservatives and their allies, including President Trump and Fox News, who are driving the relatively small protests demanding a “liberation” of the states from oppressive lockdowns — as opposed to any overwhelming public sentiment to that effect.
What’s more, every country that has managed to get its Covid-19 outbreak under control has done so with measures far more aggressive than anything tried in the United States so far.
In China, South Korea and Singapore, authorities quickly implemented comprehensive testing, along with rigorous contact tracing, isolation and quarantine. In the United States, such efforts are still under construction and are proceeding at a snail’s pace. Three-plus months into the crisis, just a tiny fraction of the needed tests, contact tracers and quarantine facilities are operational anywhere.
Civil liberties may feel to some like a second-order problem when thousands of Americans are dying of a disease with no known treatment or vaccine. Yet while unprecedented emergencies may demand unprecedented responses, those responses can easily tip into misuse and abuse, or can become part of our daily lives even after the immediate threat has passed. For examples, Americans need look no further than the excesses of the post-Sept. 11 Patriot Act.
As the nation starts looking ahead to the next phase of its battle against the coronavirus, we need to have a more honest conversation about the extent to which governments may impose restrictions on their citizens that would not — and should not — be tolerated under normal conditions.
FREEDOM OF SPEECH AND RELIGION
Consider the rights to free speech, association and religious exercise under the First Amendment: These freedoms are central to our self-definition, and yet they have all been infringed on to varying degrees across the country, as states ban gatherings where the virus can spread quickly and easily. In Maryland and Iowa, for example, all types of large events and gatherings, including church services, have been prohibited. (Many other states have exempted religious services from their bans, which raises the separate question of whether the government is impermissibly favoring religion.)
Bans like these are legal, as long as they are neutral and applicable to everyone. A state may not shut down only certain types of events, or prohibit speakers expressing only certain viewpoints. Under Supreme Court precedent, any infringement on speech or religion must be incidental to the central goal of the restriction, which in this case is clear: stopping the spread of the coronavirus.
But even if all these bans are legal on their face, what happens as the 2020 election approaches? Speech and association rights are at their peak in the political context, and Americans will be especially wary of any incursions on those rights in the months or weeks before Election Day. What if a state lifts some restrictions on large gatherings, then reimposes them in the days before an election? That may be necessary if there is another wave of the virus, and yet in a highly polarized political environment, citizens might well distrust official motivations behind a crackdown, and that could generate public unrest.
This is why it’s so important for authorities to build that trust now, and to rely openly on scientific consensus when imposing bans on gatherings and other events.
SURVEILLANCE AND CELLPHONES
Another area of concern is the government’s ability to know where we are and whom we’re with. In normal times, authorities generally have to obtain a warrant to search your personal property, like a cellphone, or to access its data to find your location.
But giving the government access to all that data carries huge risks. There were already far too many examples of law-enforcement officials abusing their access to cellphone data in the pre-Covid era, taking advantage of revolutions in technology to track people in ways that no one would imaginably consent to. Even if people give their consent to be tracked during the pandemic, governments have a very poor track record of relinquishing new powers once they have them.
The question then becomes: Can cellphone data be used in a way that helps stem the spread of the coronavirus while also being kept out of the hands of the government to avoid abuse, now or down the road?
Apple and Google are in the process of producing an app that would use secret codes to track people through their phones, while leaving the location data on those phones. If someone tests positive, they are given the choice to put their phone on a list. Other people’s phones can automatically check that list, and if any were within range of the infected person, they will be notified that they could be at risk.
Fine, in theory. But for a system like this to work, the public needs to buy into it. Enough people have to use these apps to make them effective — at least 60 percent of cellphone users, by some estimates — and no city or country is anywhere close to that level of adoption. In Norway, only 30 percent of people have downloaded one of these location apps.
Another hurdle is that the big technology companies have a poor record of protecting their users’ private information.
In the end, contact tracing — a central feature of any comprehensive public-health response — will need to be a cooperative endeavor, involving not only downloadable apps but perhaps hundreds of thousands of human beings, all doing the hard work of direct outreach to find those people at the highest risk of infection.
It would be one thing if the calls to “reopen” America from President Trump and his allies were part of a coordinated pandemic response strategy by a federal government that had taken strong and science-based measures from the start. But the White House failed to do that at virtually every turn, which makes the current protests ring hollow.
It’s possible that at least some of the current lockdowns could have been avoided had the Trump administration led the way back in January when we still had time to take advantage of the information coming out of China and prepare the United States for what lay ahead. In that sense, these devastating shutdowns represent a catastrophic failure of timely government action. Even today, top officials are refusing to take the most basic safety measures. On Tuesday, Vice President Mike Pence toured the Mayo Clinic but refused to follow the clinic’s requirement to wear a mask. What message does he think that sends to the American people? (On Thursday Mr. Pence visited a plant producing ventilators in his home state of Indiana and wore a mask.)
In a large self-governing society, civil liberties exist as part of a delicate balance. That balance is being sorely tested right now, and there is often no good solution that does not infringe on at least some liberty. At the same time, the coronavirus provides Americans with an opportunity to reimagine the scope and nature of our civil liberties and our social contract. Yes, Americans are entitled to freedom from government intrusion. But they also have an obligation not to unnecessarily expose their fellow citizens to a deadly pathogen. Protecting Americans from the pandemic while also preserving our economy and our civil liberties is not easy. But it’s essential.