In virus battle, privacy can’t be collateral damage

This country has seen how, in times of crisis, the need to safeguard citizens can clash with the protection of privacy rights. That potential conflict is surfacing again, amid the battle to defeat COVID-19.

In McHenry County, Ill., a county judge has ordered the McHenry County Department of Public Health to disclose to police the names of individuals known to have been infected with the coronavirus, so that officers know ahead of time what risk they face when they go out on a call.

The case came to Judge Michael Chmiel’s courtroom after prosecutors ordered the health department to comply, and the department refused. Health department officials said complying would violate individuals’ private health information, which they argued is protected under the Health Insurance Portability and Accountability Act. The department is abiding by the order, but has asked Chmiel to reconsider.

We don’t know what the outcome of this case will be, but in the midst of this pandemic, the best course to take is one that balances protection of citizens with the protection of their individual rights, including privacy rights.

The struggle to strike that balance previously arose following the Sept. 11, 2001, attacks on the U.S. After 9/11, tension between protection and privacy emerged time and again. The Patriot Act was crafted to enhance law enforcement’s ability to detect and deter terrorism. But it drew fire from civil rights groups who said the law paved the way for government to spy on citizens without due process. Parts of the law were later deemed illegal by courts.

We also recall, with a shudder, the Pentagon’s Total Information Awareness project, which aimed to track down terrorists by mining the expanse of private and public electronic data on individuals, including medical information, travel records, credit card bills, driving records and internet usage. At the time, we called TIA “a dangerous concept that flies in the face of this country’s most basic principles of privacy and individual rights.” The program was defunded in late 2003.

The lessons of 9/11 should guide us as we navigate the coronavirus crisis. In the case of McHenry County police officers, protecting their health as they respond to calls is paramount. But having a list of infected individuals before pulling someone over isn’t as useful as it seems.

We know that spread of the coronavirus can happen through people who carry the virus but are asymptomatic. Rather than rely on an incomplete list of infected individuals, officers would be better protected by responding to every call while donning protective masks.

As with the tragedy of 9/11, there’s no doubt that the COVID-19 crisis demands an all-hands-on-deck approach. The damage that the coronavirus has inflicted is massive.

At the same time, the need to wrest ourselves from this crisis can’t come at the expense of civil liberties. Achieving that balance between safeguarding our health and preserving our privacy rights won’t be easy. But one cannot outweigh the other.