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Big Tech Shifts the Overton Window on Privacy

The opinions expressed by columnists are their own and do not necessarily represent the views of
AP Photo/Ted S. Warren

Last week, Google and Apple announced they were working on a contact tracing technology to fight the COVID-19 virus.  How would this work?  The idea, for now, is based on using Bluetooth technology on your phone to help register devices within 6 feet of it.  Initially, the system will rely on an app on your phone to collect data but the plan is to move it from the app to the operating system on either an Apple or Google phone once that technology is ready.  The thinking here is that the operating system will be more effective than relying on individuals to download an app, something that Singapore tried but could only persuade about 12 per cent of its population to do.  The system will also rely on input from state and local agencies involved in testing for COVID-19 and we all know how well that is going.  

 So to summarize, Apple and Google are going to build tracing technology that relies in large part on consumers and overwhelmed governments for key inputs and everything will work out, because we should trust Apple and Google? 

All of this begs the question: what is in it for Apple and Google?  We might assume that in Google’s case it is because the company wants to use the data it collects to feed its digital advertising juggernaut.  Google depends on digital advertising for a steady 90 per cent of revenues.  Always has done.  Probably always will.  Apple is, of course, a hardware company so the jury is still out on what it will use the data for in years to come.  There is also the explanation that the companies provided, which is to do their part to fight the pandemic.  But companies also have shareholders and quarterly earnings reports to answer to and this is not going to change anytime soon.

 One highly plausible explanation for what is going on is that Apple and Google are using this moment to shift the Overton Window on the collection and use of healthcare data.  The Overton Window is the range of policies politically acceptable to the mainstream population at a given time.  For years, Apple and Google have struggled with collecting and using healthcare data.  Unlike what is mostly a data wild west, healthcare data is subject to some Federal standards under HIPPA.  Healthcare in general is also a hard market to break into, even for a Silicon Valley behemoth.  The market is characterized by crony capitalism and inhabited by many Swamp Creatures, many of whom give Apple and Google’s Swamp Creatures a run for their money.  The healthcare industry witnessed the havoc wrought by Google and Big Tech on other industries such as newspapers and retail and heeded their warning to block Big Tech from entering the healthcare market at all costs.  Apple and Google have met with this resistance for some time now, so using the current crisis to shift the Overton Window to persuade government agencies that they should open up their data spigots to share COVID-19 testing information makes business sense for the companies’ bottom line.

 But what about the rest of us?  Will we be better off once the pandemic lifts and the healthcare Overton Window closes again?

 The answer this question, we can look no further than Chief Justice John Roberts, who wrote the majority opinion in a 2018 landmark Supreme Court known as Carpenter. That case had to do with cellphone location tracking by the government for use in a criminal prosecution and whether the government needed a warrant to obtain it. By the time it made its way to the Supreme Court, many considered it to be the most important 4thAmendment case in decades. In his opinion for the majority, Chief Justice Roberts acknowledged law enforcement’s important mission and the cellphone plays in it but added, “At the same time, this tool risks Government encroachment of the sort the Framers after consulting the lessons of history drafted the Fourth Amendment to prevent.” In other words, we have the 4th Amendment for a reason and it applies to cellphones even though the Framers could never have even dreamt one up.  So get a warrant, law enforcement.

 Of course, Apple and Google are not the government but they are as powerful as many, thanks to lax antirust enforcement that has allowed them to grow to become the behemoths they are today.  What would the Framers make of their current plan?  We may already have the answer, thanks to Chief Justice Roberts.  This is why it is so important to ask hard questions up front about the Apple and Google contact tracing technology before it is too late.

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