End of Mass. COVID-19 App Program Doesn’t Moot Privacy Claims, Say Plaintiffs

Court for Massachusetts in Springfield. The plaintiffs allege DPH secretly installed, without either consent or legal authority, a COVID-19 contact-tracing app on more than a million Android devices, in clear violation of constitutionally protected privacy and property rights. The plaintiffs adequately stated claims under the Fourth Amendment and the Fifth Amendment’s takings clause, said their opposition. The state’s voluntary cessation of the MassNotify program doesn’t moot those claims, it said. The court should reject the defendants’ “implausible and unsupported claim” that DPH had nothing to do with shutting down an app that it developed and still bears the agency’s name, it said. Shutting down the app was “voluntary cessation,” and the plaintiffs’ claims aren’t moot under that “exacting doctrine” because they fail to make it clear that the alleged wrongful behavior couldn’t reasonably be expected to recur, it said. The defendants received data that was “unconstitutionally collected” through the app, it said. The case isn’t moot when the court “can still provide relief by ordering deletion of the misbegotten data,” it said. The defendants don’t dispute that installations of the app “constitute trespass and privacy invasions in violation of the Fourth Amendment,” said the opposition. Their claim the DPH app doesn’t gather information about device owners is “contradicted by their admission to have received user data” through the app, it said. The defendants also wrongly contend that surreptitious installations of unwanted software “is not a Fifth Amendment taking because no one has a property interest in digital storage space on their privately owned mobile devices,” it said. The court “must reject this untenable position because its adoption would extinguish tangible property rights for hundreds of millions of Americans,” it said.