July 4, 2020 marks the 244th anniversary of the signing of the Declaration of Independence. With much of the country still shut down, large gatherings banned and “non-essential” businesses closed with required masking indoors and outdoors in some states, it is hard to imagine firework displays, neighborhood barbeques and other annual Independence Day traditions being held.
A new bill introduced in the U.S. House of Representatives several months ago is another example of attempts to restrict and even eliminate civil liberties that are described in the Declaration of
Independence and outlined in the Bill of Rights of the U.S. Constitution. Under the guise of “protecting” Americans from being infected with COVID-19, Representative Bobby Rush (D-IL) introduced H.B. 6666 in the Committee on Energy and Commerce on May 1, 2020 to authorize the Secretary of Health and Human Services (HHS), acting through the Centers for Disease Control (CDC), to award federal grants to states, non-governmental organizations and other eligible entities to conduct COVID–19 diagnostic testing on Americans, including in their homes, and quarantine them in their homes or elsewhere, if necessary,
$100B Proposed to Test, Trace, Quarantine COVID-19 Infected Americans
The bill authorizes the allocation of 100 billion dollars of federal funds this year and unlimited amounts in future years to create a massive national electronic surveillance, testing, tracing and quarantine enforcement system. The funds will be used by states and other approved organizations and entities to hire “contact tracers,” who will test, trace and monitor the contacts of individuals testing positive for COVID-19. Mobile health units will be used to test Americans in their homes, if necessary.Entities eligible to receive federal funding include federally qualified health centers, school-based health clinics, disproportionate share hospitals, academic medical centers, nonprofit organizations, universities and other educational institutions,, high schools, and any other type of authorized entity as determined by the HHS Secretary. Priority will be given to applicants in COVID-19 “hot spots,” medically underserviced communities and to entities that hire residents of the community it serves. The federal funds can be used to hire, train, compensate, and pay the expenses of those doing the testing and monitoring of Americans and to purchase personal protective equipment and other supplies.
H.R. 6666 was touted as a bipartisan effort, however the one Republican co-sponsor, Rep. Van Drew, Jefferson (R-NJ) withdrew his support.
According to a press release from the bill’s sponsor, Congressman Rush:
Reopening our economy and getting back to normal will be all but impossible if we do not step up our testing efforts and implement robust and widespread contact tracing. Until we have a vaccine to defeat this dreaded disease, contact tracing in order to understand the full breadth and depth of the spread of this virus is the only way we will be able to get out from under this.
The Bill of Rights Cannot Be Suspended During A “Public Health Crisis”
H.R. 6666 would provide federal grants to entities whose primary purpose would be to trace, monitor, test, and support the quarantine of healthy people who may have come into contact with COVID-19 positive individuals. Tracking down, testing and supporting the involuntary confinement of healthy people in their homes is a violation of privacy and other civil liberties set forth in the Bill of Rights, the first 10 Amendments to the U.S. Constitution designed to protect individual liberty and limit the power of the government.1 2The U.S. Constitution is the “Supreme law of the land” and the Bill of Rights cannot be set aside by federal or state governments during pandemics or other public health emergencies.3
This fact was acknowledged by the U.S. government in The United States Statement of Interest in Support of Plaintiffs filed by the Department of Justice (DOJ) in a case4 last month in which members of a church attending a drive-in sermon were issued citations for violating an executive order5 in Mississippi. The DOJ stated;
There is no pandemic exception, however, to the fundamental liberties the Constitution safeguards. Indeed, “individual rights secured by the Constitution do not disappear during a public health crisis.” In re Abbott, — F.3d —, 2020 WL 1685929, at *6 (5th Cir. Apr. 7, 2020). These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action.6 (emphasis added)H.R. 6666 appears to violate the 4th, 5th, 8th and 9th Amendments of the Constitution by providing government funding to government and private entities for the creation and implementation of programs that would trace, test, monitor and support the potential involuntary quarantine of healthy people who may have come into contact with a COVID-19 infected person, whether or not they are exhibiting symptoms or may be immune to the virus without the consent of those being detained.
The bill may violate the 4th Amendment right of American citizens to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.7 H.R. 6666 does not appear to preserve a citizen’s right to be safe in their home free from warrantless government intrusion and monitoring, nor does it provide for the voluntary undertaking of medical testing. The bill also does not set forth how the contacts of persons with COVID-19 will be traced and whether the Constitutional rights of those infected with COVID-19, as well as their contacts, will be upheld.
The bill may violate the 5th Amendment, which guarantees that no person shall be deprived of life, liberty, or property, without due process of law.8 It appears that under the proposed law, quarantined healthy citizens could be denied the right to work, travel or otherwise go about their business without due process of the law.
H.R. 6666 may also violate the 8th Amendment prohibiting cruel and unusual punishment.9 Monitoring healthy people and requiring them to stay home, restricting their right to work and travel, for what would likely be a fourteen (14) day quarantine because they or their mobile phone was in the same area as a COVID-19 positive person, could be deemed cruel and unusual punishment.
Finally, the proposed legislation bill appears to violate the 9th Amendment, which bestows upon the people all of the rights not specifically set forth in the Constitution.10 It provides federal funding for entities to create and implement undefined “related activities” to COVID-19 testing and unnamed “other purposes.” Because H.R. 6666 is so broadly written and has no pre-set end date, there is simply no way to know what and how many inalienable rights may be infringed upon or taken away from citizens in violation of the U.S. Constitution.
H.R. 6666 Creates A Slippery Slope
The federal funding of entities to develop and implement a surveillance operation that would force the testing and tracking of healthy individuals creates slippery slope that threatens civil liberties and violations of fundamental rights essential to our constitutional republic, in which legislators elected by a majority are supposed to pass laws that equally protect the constitutional rights of all citizens, the majority and minority alike.H.R. 6666 lacks the safeguards and conditions necessary to ensure that surveillance operations and data collections would not be used by local, state and federal governments and private businesses to force the involuntary testing, monitoring and quarantining of healthy people or for other undisclosed purposes.
This unconstrained display of federal power could lead to the removal of civil liberties, such as the right to appear in public spaces and travel; the right to employment and education; the right to participate in government-funded services, and the right to receive care in a government funded hospital or other medical facility.
Representative Rush stated that under this bill, testing would be voluntary and that it, “does not authorize anyone to enter your home, for whatever reason, without your permission, nor does it allow the government to remove anyone from your home because of the coronavirus.”11
However, there does not appear to be any language in the proposed bill that protects these rights. And, the bill provides no assurance that the federally funded surveillance programs will not be mandated in the future by federal, state or local governments, employers or other entities.
Disguised Massive Government Surveillance Program
Representative Rush posted on Twitter that, “There is nothing in this bill that will threaten anyone’s individual liberties.12Critics disagree, however. A Washington, DC journalist commented;
This is nothing but a massive government surveillance program cloaked in a cure-the-coronavirus label… H.R. 6666 takes COVID-19, the disease caused by the new coronavirus, and turns it into a mass surveillance authority for government against society. And it does it deceptively so, under the guise of providing a societal good.13The bill is vague and overreaching as it grants the Secretary of HHS the unchecked authority to determine what type of entity would qualify for funding and allows for unspecified medical surveillance. It does not define “related activities” or “other purposes” and has no set end date.
There are no limits placed on the use of the information collected by these government funded entities. The information gathered while testing, tracking and monitoring citizens could be stored in a government database and potentially be used for any purpose including forced vaccination.
Government Officials Meeting with Silicon Valley
The introduction of H.R. 6666 is not the first attempt by the federal government to incentivize private companies to create a surveillance system in response to the COVID-19 pandemic. The White House has been holding private talks with technology companies and social media giants such as Facebook and Goggle in an effort to track the spread of corona virus through the implementation of digital contract tracing applications (DCT) using location data from mobile phones for public health surveillance.14 15Although DCT apps would track and monitor citizens using their mobile phones, government sources contend that privacy would not be a concern as the electronic data would be collected anonymously in aggregate form and maintain that the government is not looking to build a database.16
The creation of a large government database is concerning because the personal information stored on it could be at risk for being used for a number of purposes, including those that are unrelated to COVID-19. Large databases are also vulnerable to breech by identity thieves, foreign governments and stalkers.17
Cell Phones to Track Users Health and COVID-19 Status
In response to these White House talks, on Apr.10, 2010, Apple and Google announced they were undertaking a joint effort to help reduce the spread of COVID-19 using Bluetooth technology to build a platform that would support DCT apps.18 The technology will be built into the framework of mobile devises and will allow DCT apps, once developed and downloaded by the user, to notify individuals if their phone was in close proximity of an individual who tested positive for COVID-19.19 Apple and Google emphasize that user privacy will be maintained as data locations will be stored on the user’s own phone rather than collected and stored on a centralized database.20This surveillance technology hardly seems voluntary as it will automatically be installed on mobile phones when they are updated “to help ensure broad adoption.”21 However, Apple and Google claim that that, even though the software will automatically install on user’s phones without their consent, users will be in control by having the option of turning the technology on and off or uninstalling the technology altogether, and will have the choice to install DCT apps on their phone.22 23
Even if the user does have some control over this technology and the DCT apps it supports for now, it is easy to imagine a scenario where employers, businesses, restaurants, stores and other places require the use of this technology in the near future. In fact, technology companies are already developing apps that would allow employers to digitally track and trace their employees.24
In addition to privacy concerns, there is no certainty that DCT apps will work to control the spread of COVID-19. DCT apps may prove over-inclusive and cause self-isolation burn-out when a healthy person is directed multiple times to self-quarantine after a number of quick or fleeting exposures that are unlikely to cause transmission of the virus and may be under-inclusive in that it will not alert individuals that they may have touched a surface that a COVID-19 infected person touched hours earlier.25
First, app notifications of contact with COVID-19 are likely to be simultaneously both over- and under-inclusive. Experts in several disciplines have shown why mobile phones and their sensors make for imperfect proxies for coronavirus exposure. False positives (reports of exposure when none existed) can arise easily. Individuals may be flagged as having contacted one another despite very low possibility of transmission—such as when the individuals are separated by walls porous enough for a Bluetooth signal to penetrate. Nor do the systems account for when individuals take precautions, such as the use of personal protective equipment, in their interactions with others.26In order to be effective, approximately 60% of the population must participate in digital contract tracing. However, almost 60 percent of respondents to a recent Washington Post-University of Maryland poll said they would refuse to participate in digital contact tracing due to privacy concerns or technological hurdles.27 With the majority of Americans hesitant or unwilling to consent to using DCT apps, the question remains: will Congress pass H.R. 6666 and the federal government violate our civil liberties by mandating that all Americans participate in digital contact tracing in order to justify its one hundred billion dollar plus price tag?
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