Ended Mass. COVID-19 Contact Tracing Makes Privacy Claims Moot: Gov. and Health Director
Plaintiffs’ privacy claims over a COVID 19 contact-tracing app are moot, said defendants Massachusetts Gov. Maura Healey (D) and Department of Public Health (DPH) Commissioner Robert Goldstein in a proposed reply (docket 3:22-cv-11936) in support of their motion to dismiss…
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Friday in U.S. District Court for Massachusetts in Springfield (see 2306140034). Lead plaintiff Robert Wright conceded that the MassNotify setting ended in May but urged the court to reach the merit of the plaintiffs' claims because the voluntary cessation and capable-of-repetition-yet-evading review exceptions to mootness should apply, said the defendants. Those arguments fail as a matter of law and fact, they said. Contrary to Wright’s assertion, the court may decline to apply the voluntary cessation exception and dismiss the case as moot without determining precisely who decided to end the MassNotify setting because there's no reason to believe that decision was made to moot this lawsuit “or for any reason related to this litigation,” said the reply. Records show the MassNotify setting “stopped functioning and is no longer installed on Android devices,” which it said isn't to avoid a court judgment but because the Event Notification Service program terminated at the end of the federal COVID-19 public health emergency. Plaintiffs’ rationale that there’s no absolute confirmation that the challenged policy will never be reimposed “finds no support in case law,” defendants said, citing West Virginia v. Environmental Protection Agency where SCOTUS determined the party asserting mootness has to establish only that it's “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” DPH has no present plans “or even capacity to restart the setting or another digital exposure notification system on its own,” said the reply, and the department “is not aware of any plans to bring back the national program either.” On data collection, the reply said, “Where the unrebutted evidence shows that the data retained by the Department cannot be connected to Plaintiffs, an order directing the Department to destroy that data or stop accessing it would have no impact on Plaintiffs -- though it would stymie” DPH’s “ongoing efforts to evaluate and learn from the Commonwealth’s pandemic response.” Defendants asked the court to dismiss plaintiffs’ first amended complaint with prejudice and their request for jurisdictional discovery.