Last week, we noted with some alarm the effort of the Department of Justice to secure emergency powers from Congress to deal with the coronavirus pandemic. We focused on the DOJ’s request for the power to ask judges to extend statutes of limitations, set rules for those requesting asylum, and decide how court and administrative proceedings should be conducted.
There was a public backlash and the DOJ duly “clarified” that courts would always be the final arbiter of any exercise of power. But we hearkened back to the FISA scandal and reiterated our concerns. And then the Wall Street Journal and New York Times weighed in.
On Saturday, The Wall Street Journal ran a front-page story titled “Government Tracking How People Move Around in Coronavirus Pandemic.” The piece describes in disturbing detail how the federal government, through the Centers for Disease Control and Prevention and state and local governments, have started to receive analyses of people’s movements in certain areas of interest from cellphone data. The project is dubbed the Covid-19 Mobility Data Network.
The information would help officials learn how the coronavirus is spreading around the country and help blunt its advance. It would show where crowds are still gathering and the overall level of compliance with social-distancing regulations. It would also help measure the pandemic’s economic impact by revealing data like drop-offs in retail sales.
The aim, according to the Journal, is to create a portal for federal, state, and local officials to help plan the response to the pandemic. However, it cites privacy advocates who are concerned that the innovations invade our privacy.
While the article says the data is stripped of identifying information – like the name of the phone’s owner – privacy advocates are concerned that this could easily change and, at all events, even anonymous data can be used in combination with other publicly-accessible information to identify and track individuals.
Several days later, the New York Times ran this headline on its front-page, “For Autocrats, and Others, Coronavirus Is A Chance to Grab Even More Power.” It writes, “Leaders around the world have passed emergency decrees expanding their reach during the pandemic – will they ever relinquish them?
The issue is a real one. So it behooves us not to dismiss out of hand – as many have – a recent lawsuit filed in Brooklyn federal court by an Orthodox Jew claiming that order to close shuls during the pandemic violate his religious rights.
To be sure, given the strict ruling of our leading halachic authorities not to congregate in shuls, it is unlikely that his religion claim will get anywhere. Nor is there much doubt that the safety claim will trump the religious rights claim should push ever come to judicial shove.
But it is important that the growth of governmental assertions of power be at least looked at through some judicial process. The lawsuit warns, “Lawful process matter and emergency orders of this sort, if left unchallenged, will evolve into precedents with horrifying consequences.”
In this connection, we note the seemingly arbitrary order issued by Governor Andrew Cuomo requiring all hospitals in New York to allow women to have a partner in the labor and delivery room. The measure was a response to a decision by two major New York hospitals to ban support people from labor and delivery rooms because of the coronavirus pandemic.
An arbitrary and dangerous distinction? Perhaps. The governor has a lot to be concerned about and needs leeway. But it does rather tend to make our point.