I’ve been friends with Marty’s wife Louise for over forty years. A lawyer, banker, tech entrepreneur and author of over 200 articles and nine books, Marty is the author, most recently, of Capitalism for Democrats and Capitalism for America, both published in 2019.
It’s no fun anymore, but it could be a whole lot better
by Martin Lowy, Lecanto, Florida
It’s no fun taking an airplane anymore—ever since 9-11. You have to go through that invasive process where they look inside your body and your laptop.
But looked at another way, what a great success! There have been no hijackings for almost 20 years. We board airplanes without worrying about that.
If, despite the pandemic, you could resurrect your fairly safe air travel, make it fairly safe to go to a sporting event, a theater or a party without social distancing, all in exchange for invasions of privacy no worse than when you board a plane, would you do it? If it also reduced the anticipated government deficit and helped to lower the unemployment rate, would that make you feel more likely to say yes? And if it saved lives, too, would that help you decide to admit that sometimes invasion of privacy is worthwhile and appropriate?
The Apple-Google cell phone API
The Apple-Google API (application programming interface), enabled by a health department app, if used by a majority of people, could accomplish everything I have outlined—and more. And the invasion of privacy need not be even near as great as submitting to a body scan or suffering from a lockdown to protect the public from itself.
The Apple-Google API protects privacy by keeping all information on each person’s phone, with no disclosure to the authorities. In that regard, it is exemplary.
Let’s think about being contagious for Covid-19 as having a dangerous weapon because it might act against anyone you come into contact with, whether you intend that or not. And if someone you come into contact with has risk factors, that person has a very good (bad) chance of dying from the disease that you might visit on them.
As a society, should we permit that weaponized person to roam free? And if we find a person has become weaponized, shouldn’t we prevent that person from using that weapon against other people?
Our cell phone privacy
Now suppose the technology we use is a cell phone that happens to be owned by the person who becomes weaponized. We respect that person’s privacy, including the privacy of that cell phone—but not when that person is knowingly weaponized. Our respect for privacy, according to the Supreme Court’s most recent decisions, does not extend to conduct that will injure others or to ongoing emergencies.
As a society, we should attempt to—during the period of the pandemic—and for that period only—condition a person’s right to go into a place with many other people on showing that they are, as far as they know, not weapenized.
An app created on the Apple-Google API platform could be designed to do that by including a QR code passport that says whether the user is believed to be weaponized or not. If weaponized, then health authorities should prevent that person from going where there are many people. If not weaponized, the person should be free to go among other people.
The QR code passport would not be a guarantee of safety. But it would be good enough that people might assume the risk of going about their business.
There is not another, less invasive way to do this
After-the-fact contact tracing cannot accomplish these goals. It cannot provide any evidence that any person has not been weaponized.
Where health is concerned, our society accepts many compulsions as routine. Restaurants cannot make up their own health codes. Public safety requirements (fire laws, for example) apply to many types of venues and businesses. You need ID to get on an airplane and be scanned to be allowed on board. An important part of government’s job is to protect the public health and safety.
During the pandemic, government should use its powers to invade that degree of privacy that is necessary, in Chief Justice Roberts’ words, “to respond to an ongoing emergency.” A QR code passport system built on the Apple-Google API could do that.