Podcast: The COVID Privacy Challenge, With Amitai Etzioni

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The COVID crisis has shifted the data privacy debate away from its prior focus on individual rights to one more focused on collective needs and responsibilities—for example, when it comes to sharing and analyzing medial data related to the pandemic, or tracking individuals’ contacts. Rob and Jackie discuss these issues with noted scholar and public intellectual Amitai Etzioni, professor of international affairs and director of the Institute for Communitarian Policy Studies at George Washington University.




Rob Atkinson: Welcome to Innovation Files. I’m Rob Atkinson, president of the Information Technology and Innovation Foundation. We’re a DC-based think tank that works on technology policy.

Jackie Whisman: And I’m Jackie Whisman. I’ve been with ITIF for over a decade and part of my job is making sure Rob doesn’t forget to tell you that ITIF is the world’s top-ranked think tank for science and technology policy.

Rob Atkinson: And this podcast is about the kinds of issues we cover at ITIF, from the broad economics of innovation to specific policy and regulatory questions. And in this episode, we’re focusing on a pretty critical question now, and that’s the issue of privacy in a time of global pandemic.

Jackie Whisman: This is a tough issue for a lot of people, Rob, and I think one that is easily misunderstood, actually.

Rob Atkinson: Yeah. There’s so much misunderstanding about this in terms of tracking apps and how data is used. So it’s really an important issue to delve down deeper into.

Jackie Whisman: Yeah. Speaking for myself, if I didn’t work at ITF I don’t think I would know that de-identifying the information was commonplace. I think that there are a lot of people that actually believe CVS and Facebook, for example, know exactly who they are and are tracking their every move, not just using de-identified data to feed them coupons or make decisions about inventory.

Rob Atkinson: No, that’s absolutely right. And unfortunately there’s a lot of misunderstanding about the issue of data and privacy. And now we’re in this critical time where we’re going to be using data, whether it’s health data or tracking data, to help limit the pandemic’s spread and potentially find cures. So we’re really honored and delighted today to have a great guest with us, Amitai Etzioni. Amitai is the Professor of International Relations at the George Washington University. He’s also Director of the Institute for Communitarian Policy Studies, and the founder of the Communitarian Network.

And for those of you maybe not familiar with communitarianism, Amitai really is the godfather of this intellectual movement, which is a counter, if you will, to the radical individualism that is too often in our political economy. He has served as a senior advisor in the Carter White House. He’s taught at Columbia, Harvard Business School, UC Berkeley. And Amitai and I both had the pleasure to serve about a decade or so ago on the Markle Task Force on Homeland Security in the Information Age, where we delved into questions about how we could better use information to protect the homeland, but also protect civil liberties.

He’s the author of many, many books, The Reactive Society, more recently Security First: For a Muscular, Moral Foreign Policy and The Common Good. So Amitai, thanks for joining us.

Amitai Etzioni: Well it’s very good to work with you again. Before we get to our topic, in a similar situation, Abraham Kardiner once said, “You know, that was a very, very rich introduction. But I’m embarrassed. I need to add one more detail.” And then he paused and he said, “I was analyzed by Sigmund Freud.” And so I cannot match that, but I do need to imitate him by saying this was an extremely extensive and generous introduction, but I still need to add that I wrote two books on privacy, since this is our subject. One is called Limits of Privacy, and the other is called Privacy in the Cyber Age. So having given extensive and unnecessarily long introduction to myself, how can I help?

Rob Atkinson: Well, first of all, thank you. That’s my oversight. Actually, I have to say I have read one of those, Limits to Privacy. I thought it was a really eyeopening and important book. So the issue of civil liberties and privacy has come up. One particular place is the issue of, how do we use technology today, our smartphones, to trace exposure and spread of COVID-19? You recently wrote an op-ed in [The National Interest] newspaper, and you said, “One of the most effective ways for fighting the spread of the Coronavirus is the use of surveillance and facial recognition technologies to track those infected, and enforce the self-quarantine of them and those they’ve interacted with.” That’s certainly what Taiwan is doing, for example. Can you say a little bit more about that?

Amitai Etzioni: Sure. By the way, you should add it to the list because they use the technology to talk terrorists, and they just decided to apply those very elaborate tools they have to fight the virus. And as of today, I believe down to 20 cases. Now let’s start with the Constitution. Most people, when they talk about the right to privacy, some might think it’s some kind of an absolute right. So let’s say first of all, about the privacy, two things. First of all, it’s not as much as mentioned in the Constitution. The second, the basic idea is captured in the Fourth Amendment. And the Fourth Amendment of the Constitution does not say there will be no search. Means you cannot examine people, you cannot examine their goods. It says there will be no unreasonable searches. That means on the face of it, the Fourth Amendment recognizes that there’s a whole category of reasonable searches. In a moment I’ll come out what those are.

But this is really fairly exceptional. From all the rights listed in the Constitution, most of them are worded in an absolute manner. Like the First Amendment says, “Congress shall make no law which violates your right to free speech.” There are no qualifications. The Fourth Amendment is one of the two amendments, which immediately from the start tells you there are searches, so called violation of privacy, which are completely legal and legitimate.

Now what are those? Those you kindly food to communitarianism, is those where there is a strong, compelling public interest for the common good. So the courts, in a very, very large number of cases, the courts use a different term. They don’t talk about a common good, they talk about a public interest. But time and time and time again, they hold that when there is a compelling public interest, privacy has to take a second seat. And I won’t to go on and on, but let’s just mention some major cases.

One of the most telling ones is about train engineers. Train engineers used to get high on drugs and alcohol, and drive trains full of people off the tracks. So the court says, you can test train engineers, which is a much larger violation of privacy than tracking their phone, and as you say, sometimes it’s de-identifying. Submitting them to a blood test or some other kind of test without prior suspicion, without particular suspicion, just because they’re train engineers. And so on and so on it goes. And let me close here by one telling example. In the days we used to travel by air, each day many hundred thousand Americans were searched as they go to the airports, violating their so-called privacy.

Because until 1973, airplanes were hijacked and then became terrorists. And the courts and the overwhelming majority of the public said, “Of course, to stop terrorists, to stop skyjacking, we’ll allow to be searched.” So comes now the pandemic, which is killing thousands and thousands of people, and submit to an awful illness. There is no-brainer that people are allowed to be tracked. Of course, we want to be sure that these powers are not abused, so we have to set up accountability mechanisms. But there is no question that this technology should be used if in any way we can stop the killing this virus inflicts so widely.

Rob Atkinson: Amitai, a number of... I think as you know and you’ve written about, Google and Apple have come out with a joint project to use Bluetooth technology on smartphones so that a person who’s turned that on, if they come down with COVID, it will automatically notify any cell phones that they’ve been in contact with. Or vice-versa, if they’ve come in contact with someone who has that. It doesn’t give any data to the government, it just really tells the person what happened. And yet there are privacy advocates who are saying that these systems should be not turned on automatically by default, that individuals should choose to turn them on. And there’s a third view, which you could say, you have to have those on. What’s your take on that question?

Amitai Etzioni: What we know from HIV contact tracing is, an ideal system doesn’t tell you whom you got it from because you don’t need to know that. It’s just telling you you’ve been in intimate contact with somebody who is HIV, and therefore you should be tested. And so here again, I think I would prefer a system that you don’t need to know whom you’re been in contact with which may have given you the virus. All you need to know that you have been in contact and therefore you should be tested and maybe treated. So I would prefer a system which does not disclose the identity of the infected person, because it’s unnecessary violation of privacy, which adds nothing to public safety.

Rob Atkinson: Yeah, no, absolutely. And that’s our position as well. I think the other question though is, if you have this now on your app because you’re using Apple and they put it on your phone, or an Android Google device, should they turn that on for you so that it’s on all the time? Again, not identifying the person you got it from or any other information, because a number of privacy advocates say that that system should be only opt in. If we choose to turn that on when we go outside we can do it, but otherwise not.

Amitai Etzioni: Again, we seem to look at what’s on both sides of the equation. On one side, the equation is killing somebody you loved or killing members of your community. On the other side... Just like a criminal murder, right? We talk about lives in major danger. It’s not a matter of... It’s not one out of hundred thousands. There’s a very high probability that you’re going to kill somebody if you’re infected and come in close contact with them. So I know one side is a significant probability of major, major harm. On the other side is some privacy advocates concerned that somehow this may lead to a 1984, some kind of hypothetical story of government using this data to arrest the centers or whatever.

So the equation is so clearly favorable in this case, to a mandate contact tracing, by the way, also, the only way you can stop keeping the whole economy closed down. So aside from the health benefits, there’s also a question of allowing people to earn their livelihood. All this is on one side. On the other side of the equation, you’re a hypothetical danger. And so it seems to me that there are sometimes very difficult privacy choices. That is not one of them.

Jackie Whisman: Do you think that these platforms can do this within the boundaries of existing privacy laws? Or are you suggesting that we amend privacy laws? I know that in some of your writings you’ve suggested that we even propose a 90-day moratorium on some of the privacy laws, and I’m curious how you would structure this in this time of crisis?

Amitai Etzioni: I can’t really completely answer that question, because I’m not completely updated on the privacy laws concerning phones. There’s some cases involved which go to the question... Some people argue that there is more information in your phone than in any other place, like I don’t know, in your diary or whatever, in your Social Security file or something like this. And therefore, phones should deserve special protection. So I’m not current on what the court said, but that’s why I suggested instead of just now going to court and waiting for the Supreme Court to rule on that, meanwhile we die, that we should suspend all relevant privacy laws for 90 days during the height of the pandemic so we can proceed with all necessary speed to do what we can to save lives.

And meanwhile, the lawyers can argue things out, and if necessary Congress, which also is a slow acting place, can take action. But this is such a serious condition that we should avail ourselves to this very powerful, very effective tool. Again, look at what happened in South Korea. Look what happened in Taiwan, look at what happened in Israel, and you see that’s really the only reliable way to both stop the pandemic largely, and re-open the economy. So for that reason, I say if there are laws which are in our way, let’s suspend them for 90 days while we work out either legal amendments or court cases.

Rob Atkinson: Amitai, I think you’ve seen, as most of us have, these reopen movements, these individuals with automatic weapons going into the Michigan legislature, and people claiming that their civil liberties are being violated because they have to stay at home. It strikes me that the privacy advocates are acting in a similar way. They’re saying that, “My civil liberties are so important that I shouldn’t have to have any sort of sacrifice,” if you will. So in other words, both sides are embracing what you’ve termed this radical individualism, rather than thinking about the public interest or the public good. Do you agree with that framing? Do you think that’s right?

Amitai Etzioni: Well, first of all, they are not only endangering the public interest, they endanger themselves and their loved ones. I started another op-ed the other day with a line, and a Republican president, and one of the greatest philosophers of all times, and one of the greatest jurists of all times, disagrees with these people. And I quoted them Abe Lincoln, and Mills, and Holmes, all said... All of them said one way or another, that your rights to privacy stop, your liberty stops, when you start hurting others.

And so, even libertarians... I quoted Boris from the Cato Institute, even libertarian philosophers agree, the phrase used to be that, “My right to extend my fist stops when it hits your nose.” And so the notion that liberty means I can do what I want, even if you harm others, is not supported by anybody, any thoughtful a person. So these people exist of course, but in terms of ethics or legal tradition, even the most that die hard libertarians, they have no leg to stand on.

Rob Atkinson: What do you make of this? I mean, how have we gotten to this point where there was always a balance? Even libertarians as you point out, said, “I can do what I want as long as it doesn’t take your property or hurt you as an individual.” And yet today we’ve moved to this world where privacy is seen as a fundamental human right. You know, what I find striking is now Europe is in a big conundrum, because they’ve realized that the GDPR, the privacy regulation they put in place, is actually standing in the way of them being able to use data to address the COVID pandemic crisis. And yet, a year ago they said privacy is a fundamental human right. It trumps all other rights.

Amitai Etzioni: Yes, they said that. But then if you look at the texts of that law you cited, the data’s... They don’t call it the privacy, they call it the data protection, I believe. Something like this. And they say privacy is a fundamental right, but there are six exceptions. So if it stands in the way of research, “Oh, well, no.” If it stands in the way of network security, “Oh, well, no.” If it stands in the way of protect property rights and commons, “Oh no.” So they already have six huge exceptions.

And last but not least, they have what they call a compliance gap. So every time I go in Europe and I give a lecture about privacy, I always remember to ask the audience, and ask them if ever any one of them, as the law requires, have been asked for permission to use the data for secondary use. The idea of privacy is that you own the data, and therefore if somebody who wants to use it beyond the original reason you gave it to them, they have to ask you permission for secondary use.

And I haven’t found yet anybody who held that hand. So A, they have used exemptions, and B, to get away with having such a highfalutin notion of privacy, but not enforcing it. So after I arrived there, struggling a bit, they will find us in days. They will do contact tracing in effect. They are introducing contract tracing in Germany and Italy, and that law will not stand in their way.

Rob Atkinson: There’s a couple of issues here. There’s immediate issue, contact tracing, and limiting the spread of this, getting the spread rate below one so that it either dies out or it gets very, very low. And then the second issue is really about treatment or a vaccine. And there is a place where being able to share health data in a very rich format, including genetic data, genomics data, is very important.

And yet under our health law, HIPAA, HIPAA is basically a structure where it’s just very, very difficult to share health data. Do you think we should be in a situation where most Americans are, again, going back to this opt-in, opt-out, if it was up to me I would be happy to have medical researchers use my health data. I don’t have any problem with that whatsoever as long as they don’t publicize my personal information. Do you think we should be moving more in that direction so that we can share more health data, particularly now in a time of crisis?

Amitai Etzioni: So Jackie started by talking about de-identified data. So in contact tracing, de-identification might be difficult because if I tell you you were in contact with somebody who has this, you may very quickly guess what that was. But what you’re talking about is very, very, very important. And that is advancing our medical health research. And there we can use de-identified data. And while again, privacy advocates come out with some examples that here and there somebody used de-identified data and nevertheless we were able to reverse engineer it and find out that it was one case out of millions in which somebody was identified. By and large, de-identified data, and I completely agree with you, is essential always and especially in the crisis.

Jackie Whisman: You could see with health data being so sensitive, that this would be a real challenge for people to wrap their heads around. Is this one of the... Kind of to your earlier conversation, is this something that would be an opt-in, opt-out structure? Or would it be automatically shared by providers?

Amitai Etzioni: I figure if people can opt-out, we’re going to get skewed samples and the data would be basically useless. So we are approaching hospitals or the Medicare database, and we should be able to use that without having to approach individuals. There was an interesting study done once, three years back, by somebody at the Mayo Clinic who wanted to go back to everybody in the sample and ask their permission. And first of all, seven people in the sample had died. And others of nursing homes with dementia, and others refused to answer, and others they couldn’t find. And they spent all their budget on trying to track people, and then they had a very skewed sample. If you take it serious that medical research is essential for us to get a vaccine, to get on top of that, and that we’re going to use a strong de-identifying method if we can, now we cannot allow for opt out.

Rob Atkinson: I want to just tie this all back together before we close, to communitarianism. And maybe you could just give a couple of sentence definition of what you mean by that. But more importantly, it seems that we’ve gotten the balance between communitarianism and individualism wrong. We’re never going to be an Asian nation, many of them much more communitarian than we are. But it seems like we should get the balance better to do things like what you’re talking about, sharing medical data. And it seems like we are going in the opposite direction. Do you have thoughts on that?

Amitai Etzioni: That is very, very important. Yeah, I appreciate closing on that note. So as you already implied, communitarianism comes in two major flavors. One is what some people call Asian communitarianism, I prefer to call it authoritarian communitarianism. That takes the position that a society is the only thing that matters, that individuals have basically no rights. And they are like... Sometimes they say, like the cell in the body. The purpose of the cell has no rights or significance. Its significance arises out of its place in a larger organ, in the larger hall of the society.

But I’ve been championing, and some of my colleagues, and what got quite a bit of support from Bill Clinton and Tony Blair, and served a major part in their re-election campaigns, is liberal communitarianism, which takes from the get go the notion that we face two competing calls. One, individual rights, which are very, very, inalienable. Very important. And equally important is a concern for the common good.

And the conversation starts with the notion that you face to competing claims. The public good, the common good, and individual rights. And then we go to this question we went into earlier. So how do we sort out which takes priority under what conditions? And we find... And when the violation of rights are minor and temporary, and the gain to the public is huge, that the common good should take precedent.

And let’s close here as you very, very properly put it, the American society keeps going forth and back between leaning more on the individualism side, and a more perfect union on the common good. And in recent years, because of libertarian sentiments, the Tea Party and such, we have tilted way, way over to radical individualism. And the time there was any [inaudible 00:26:17] now has come to re-correct that balance, not to an Asian communitarianism, but to a carefully crafted balance between rights and the common good. And the pandemic tells us it’s time to somewhat more leave it to the public good.

Jackie Whisman: You know, according to a Pew Research Center report that came out recently, six in 10 Americans, roughly 63%, do not understand current privacy laws and government regulations, but three quarters, so 75%, favor more of it. So I think more Americans need to be reading your books.

Amitai Etzioni: Well, I’m certainly not going to disagree with you there, yep. It’s always a pleasure to work with you guys, you’re doing great work. Thank you for including me, and be safe.

Rob Atkinson: Amitai, thank you so much. There’s always fascinating discussion with you. Encourage people to look at your work, read the op-ed, read your books. Great and needed insights on to where we need to go.

Jackie Whisman: Yes. Thanks so much, and thanks to all of you for listening. If you liked it, please be sure to rate us wherever you get your podcasts, then go to itif.org and sign up for our weekly email newsletter. Also follow us on Twitter, @ITIFdc, and we’re on Facebook and LinkedIn too.

Rob Atkinson: Well that’s it for now, but we have more episodes coming up with great guests lined up to talk about issues like broadband, e-government and where technology’s going in this time of crisis. Please come back.

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Podcast: The COVID Privacy Challenge, With Amitai Etzioni