Minnesota law enforcement isn’t “contact tracing” protesters, despite an official’s comment

“Contact tracing” has become the term du jour in the coronavirus era, as it’s largely seen as one of our best, time-tested tools to contain the spread of the virus and safely reopen the country. But it’s also controversial, especially with the rollout of digital contact tracing tools, some of which were created by data-greedy tech companies. Privacy advocates have feared that the public health crisis could give rise to surveillance methods that are applied to other areas long after the pandemic has passed. Some are stoking those fears.

The Minnesota Department of Public Safety raised alarm bells last weekend when Commissioner John Harrington said in a press conference that law enforcement was using “contact tracing” on arrested protesters.

“As we’ve begun making arrests, we have begun analyzing the data of who we have arrested and begun actually doing what we think is almost pretty similar to our Covid,” Harrington said. “It’s contact tracing.”

Not quite. According to Minnesota public health authorities, Harrington was referring to the normal process of law enforcement investigations. He did not mean that the police were using data from Covid-19 contact tracing efforts or tools to assist in those investigations, as some have interpreted his remarks to mean.

“He used the term ‘contract tracing’ as a metaphor,” Julie Bartkey, a spokesperson for the Minnesota Department of Health, told Recode. “Just as we at MDH have used the term ‘disease investigators’ to describe our epi[demiology] processes, they used a public health term. But their process does not involve public health authorities.”

A spokesperson for Harrington agreed.

“He is talking about typical criminal investigative work, not a new technology or strategy,” Bruce Gordon, director of communications for the Minnesota Department of Public Safety, told Recode. “He borrowed a term from the Covid-19 world.”

Contact tracing is the process of finding out who an infected person has had recent contact with, and then informing those people that they’ve been exposed to the illness in order to avoid further spread of the disease. In the absence of a national effort to contain the virus, states have hired thousands of people to do this work. Somewhat ironically, Minnesota does not appear to be one of them. The state has had trouble expanding its contact tracing efforts due to Republican concerns about the cost. Some states and countries have introduced digital contract tracing tools as well, though their effectiveness has yet to be proven.

But Harrington’s appropriation of a Covid-fighting term could make a public that’s already suspicious of law enforcement refuse to participate in public health efforts to find and help people exposed to the coronavirus, which would then render those efforts less effective. Considering that the mass congregations of protesters could become hotbeds for the spread of the virus, it’s especially concerning that the very people who would benefit most from contact tracing now have that much more reason not to trust it.

And they might not be wrong — at least, not entirely. Bartkey also said that the MDH doesn’t have a policy or law specifically forbidding law enforcement from accessing or using any information collected by coronavirus contact tracers or tools.

“Covid is too new to have legislation attached to it,” Bartkey said.

That’s a problem, and not just for Minnesota. The Electronic Frontier Foundation (EFF) has written extensively about the need for laws and controls over the data collected for the purposes of combating the coronavirus.

“We need new laws to guarantee such data minimization, not just for contact tracing, but for all Covid-19 responses that gather personal information,” Adam Schwartz, senior staff attorney for the EFF, recently wrote.

According to the Washington Post, a bill that would put limits on digital contact tracing tools and the data they collect will soon be introduced to the Senate. It has bipartisan support, including from Maria Cantwell, the highest-ranking Democrat in the Senate Commerce Committee. In mid-May, House and Senate Democrats introduced another bill that would similarly protect health data collected during a public health crisis. So that needed legislation may be coming, but it’s not here yet.

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