FTC’s Phillips Says COVID-19 Highlights Need for Enforcement Flexibility

Phillips urged policymakers not to be “absolutist” on privacy proposals. COVID-19 has shown the need for flexibility, he told the Federalist Society, noting the Health and Human Services Department’s relaxation of the Health Insurance Portability and Accountability Act enforcement in favor of telehealth. FTC Chairman Joe Simons said the agency will be reasonable and flexible with enforcement application, Phillips added.

Some of that discretion goes away if legislators implement a private right of action, Phillips said. “There’s no reason to believe that for-profit trial attorneys will pivot in the context of a crisis. And there’s a cost that comes with that, the ability for the government to stop and breathe.” There’s no question government can use contact tracing for good, Phillips said. The national and international privacy conversation has refocused on the “new tools people are using to live their lives and the relationship of new technology to the pandemic,” he said.

There’s no reliable data to suggest contact tracing apps will be effective, Center for Democracy and Technology Privacy's Data Project Director Michelle Richardson told Senate Commerce in follow-up testimony from a virtual hearing earlier this month (see 2004090059). The notice and consent model failed in “far less urgent scenarios,” she wrote. “We cannot presume the ‘voluntariness’ of app tracing as a meaningful check. There is a very real risk that employment, education, housing, or other opportunities may be conditioned on the use of these apps.”

Netchoice Vice President Carl Szabo dismissed concerns notice and consent doesn’t provide meaningful consent. The Apple-Google platform will involve multiple points of consent (see 2004170060), he said in an interview. COVID-19 provides an opportunity for tech platforms to use their technical prowess to benefit society, he added.

Government must work with industry to find solutions, including proper notice and consent, Mintz privacy attorney Brian Lam said in an interview. Data will let policymakers predict future issues and troubleshoot whether they are taking proper measures, he said, calling contact tracing an important tool for curbing COVID-19.

Congress should direct the Centers for Disease Control and Prevention to create a national contact-tracing strategy for the next COVID-19 response package, said Sen. Elizabeth Warren, D-Mass., and Rep. Andy Levin, D-Mich., Thursday. They cited expert agreement that contact tracing will be “essential to mitigate COVID-19.” The strategy should outline a plan to hire and train case investigators to identify infected individuals and trace their contacts, they said.

Sen. Ed Markey, D-Mass., outlined nine contact-tracing principles Wednesday. He cited medical and public health expert agreement that the “only way to safely return to normal life” is to “implement a massive contact tracing and infection control plan.” He urged voluntary participation, transparency, data minimization, retention limits and integration with a comprehensive public health strategy.

Providing visualization maps based on data “is one meaningful way for governments and health officials to frame their responses to COVID-19,” resonded Interactive Advertising Bureau Executive Vice President-Public Policy Dave Grimaldi to Senate Commerce. Contact tracing relies on available testing, said Network Advertising Initiative CEO Leigh Freund. “If the availability of testing is limited, the ability to rely on contract tracing is limited as well.”

University of Washington law professor Ryan Calo said he’s skeptical that truly privacy-friendly contact tracing apps will be effective: “It must have government backing, which raises civil liberty questions. Security experts have already begun to identify clever ways potentially to re-identify participants.”