Artificial Intelligence, COVID-19 and the Tension between Privacy and Security

Pillsbury - Internet & Social Media Law Blog
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Pillsbury - Internet & Social Media Law Blog

As the world continues to deal with the unprecedented challenges caused by the COVID-19 pandemic, Artificial Intelligence (AI) systems have emerged as a potentially formidable tool in detecting and predicting outbreaks. In fact, by some measures the technology has proven to be a step ahead of humans in tracking the spread of COVID-19 infections. In December 2019, it was a website-leveraging AI technology that provided one of the key early warnings of an unknown form of pneumonia spreading in Wuhan, China. Soon after, information sharing among medical professionals followed as experts tried to understand the extent of the unfolding public health crisis. While humans eventually acted on these warnings, the early detection enabled through use of AI-supported data aggregation demonstrates both the promise and potential concerns associated with these systems.

Built on automated data mining, AI incorporates machine learning algorithms trained to spot patterns in large-scale data sets. For COVID-19-related tracking, AI has been leveraged in two critical ways. First, through aggregating information from online sources, such as social media, news reports and government websites, AI systems have been harnessed to identify early signs of an outbreak. Second, both governments and private companies have explored, and in some cases implemented, AI tools that support surveillance of public spaces through biometric and other monitoring data. Public transportation systems in China, for example, are reportedly deploying thermal imaging cameras that can remotely take hundreds of temperatures per minute, input that information into a facial recognition platform, and detect those presenting risk of COVID-19 infection. And the use of AI-supported public monitoring tools is not limited to China. U.S. companies are developing software that analyzes camera images taken in public places to detect social distancing and mask-wearing practices. Furthermore, federal, state and local governments have reportedly partnered with advertising and technology companies to study geolocation data and develop COVID-19 tracking applications to generate information on how the virus is spreading. Consistent with these efforts, the CARES Act stimulus package provided the CDC with $500 million in funding to support public health surveillance and data analytics, directing the agency to develop a surveillance and data collection system for COVID-19.

Indeed, with the rapid spread of COVID-19 worldwide, AI-based technologies have emerged as a promising tool to help stem the spread of the pandemic. At the same time, longstanding concerns about digital privacy and the misuse of personal data have come to the forefront. As effective as these technologies may be, the challenge comes when what begins as a short-term measure to assess public health risks has a longer-term impact on personal data privacy. Without even wading into the substance of COVID-19-related surveillance practices, governments harnessing technology to track citizens’ movements raise foundational questions regarding whether the data collected is held by the government or a private entity. In the United States, as applications are developed for tracking measures, such as tracking virus exposure, helping screen employees in office settings, and monitoring social distancing, many of these tools may not be adequately covered by the existing sector-specific federal privacy framework.

Recognizing these challenges, the Organisation for Economic Co-operation and Development (OECD) has released recommendations for policy makers to ensure that AI systems deployed to help combat COVID-19 are used in a manner that does not undermine personal privacy rights. U.S. lawmakers have also recognized the privacy issues inherent in the use of comprehensive data collection to track COVID-19 and have offered legislative proposals to reform data privacy protections and prevent the misuse of health and other personal data. At this point merely proposals, they reflect the reality that, as AI and similar “big data” tools continue to play a role in tracking COVID-19, a push to reform privacy laws accordingly may soon follow.

These issues continue to evolve and remain almost as uncertain as the spread of COVID-19 itself. That said, businesses relying on AI systems to track pandemic-related risks would be well-advised to follow current developments in this space and consult with counsel as reforms to the legal framework governing these technologies are contemplated.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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