Government enforcement of quarantine raises privacy concerns

Judges in Louisville, Kentucky, are enforcing isolation for people who have tested positive for COVID-19 by ordering corrections officers to outfit them with GPS ankle monitors.

It’s one of a range of enforcement strategies that government officials across the country are employing as the pandemic worsens, in an attempt to enforce isolation or punish those who violate stay-at-home orders.

While some public health experts support the approach to keep people in their homes, criminal justice reform advocates are concerned about the possible consequences of heightened surveillance during this time of crisis.

State law allows Louisville Metro Department of Public Health and Wellness to issue an “order of isolation,” which a judge has to sign, allowing a corrections officer to place a GPS monitoring device on an individual who has defied quarantine. 

Steve Durham, assistant director of the Louisville Metro Department of Corrections, told The Appeal that over the past two weeks, four people have so far been placed on the devices. One of them was a man ordered onto a monitor after he tested positive for COVID-19, who authorities say went shopping in public on March 21. Another lives with someone who tested positive and did not self-isolate, Durham said.

Durham described the initiative, which he said Louisville is piloting, as a “civil way” to manage a person who is not being compliant with their isolation.

“It’s both what the community sees as the least restrictive way of enforcing, and it’s resource-driven as well,” he said. “The alternative that we’ve seen in other jurisdictions is that you place one or more law enforcement officers at the household to keep them under observation and to keep them contained.”

If the person leaves their home or violates the conditions of the detention, they could be arrested or face charges, he said.

Michael Ulrich, an assistant professor of health law, ethics, and human rights at the Boston University School of Public Health, told The Appeal that putting individuals who violate isolation on ankle monitors could be an effective approach and a good alternative to placing an officer outside their home to monitor their movement or detaining them somewhere outside their home.

“It seems like an in-between,” he said. “We don’t want to take you to jail. We don’t want to hold you in some cell or someplace where you’ve got no phone and no electricity. But we also want to make sure that you actually stay there and aren’t putting people at risk.”

But anti-surveillance advocates like Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project, say they are concerned about what increased surveillance during a time of crisis will mean once the pandemic ends.

“Even prior to the health crisis, we’d seen a really alarming national trend where jurisdictions, as part of a reduction in the national prison population, were substituting electronic shackles for physical prison bars,” he said.

Experts warned that government responses to this pandemic could quickly become normalized and remain in place long into the future. James Kilgore, a formerly incarcerated activist and director of the Challenging E-Carceration project, noted that almost two decades after the September 11 terror attacks, provisions of the Patriot Act, which were supposed to expire four years after its passage, are still in effect today.

Heather Gatnarek, a staff attorney at the American Civil Liberties Union of Kentucky, said the ACLU is typically wary of government overreach and enforcement. But the organization also understands that in times of emergency and crisis, governments have a heightened ability to restrict people’s movement. For that reason, they will be monitoring the use of ankle monitors to make sure they are being used appropriately.

“We would look for things like whether there’s due process [and] whether people are being heard by a neutral party (in this case a judge), and certainly we want to make sure that whatever restriction is put in place is time-limited,” she said.

Gatnarek said she’s also concerned about potential criminal charges that individuals could face if they are found to be violating the terms of their monitoring.

Louisville contracts with SCRAM Systems for its monitors, which are typically used by the Department of Corrections for people convicted of criminal charges, Durham said. Other private companies have already been capitalizing on the potential to profit off this moment of increased surveillance. 

Attenti, a company that provides electronic monitoring products, has advertised a “quarantine management system that allows authorities to “easily monitor the location and condition of people under quarantine—anywhere, anytime.”

Federal lawmakers have also begun thinking about ways to use tracking and surveillance to respond to the pandemic.

In a policy paper released Wednesday, the national ACLU warned about the practical limits and privacy concerns that come with location-tracking technology.

Cahn said he wants governments to be wary of violating privacy and personal liberties. “I’m very concerned about the idea that the most intrusive measures are effective,” he said.

“People who endanger others and fail to take proper precautions can get sued for negligence, and in the worst cases, for wrongful death,” he said. “The truth is that when we treat it as a criminal justice issue and not a civil negligence issue, we’re mapping on all the worst abuses of the criminal justice system.”

Kira Lerner is a staff reporter for the Appeal based in Washington, D.C. She is currently a Lipman Fellow at Columbia University’s Graduate School of Journalism.