70 Am. U. L. Rev. 1681 (2021).
* Visiting Clinical Assistant Professor, Boston University School of Law; Fellow, Yale Law School Information Society Project. The author thanks Alan Butler, Andrew Ferguson, Ari Ezra Waldman, and Laurin Weissinger for their feedback and support. The author also thanks the editors of the American University Law Review for their editing support and for organizing the Law Review’s 2021 Annual Symposium, “Privacy in the Age of Emergency.”
COVID-19, the global pandemic that began in 2019, altered how we live our lives in just about every way imaginable. Some of those changes were obvious—for example, those who were fortunate enough to be able to work from home began working online—while other changes were more subtle. The latter category included unprecedented levels of data collection by governments and organizations purporting to collect information that would help stop the pandemic’s spread. Given the deadly nature of COVID-19, few would question any public health efforts, no matter their impact on privacy. However, the lack of attention to privacy issues during the pandemic can and will have long-ranging effects that will lead to greater losses of privacy in the future, post-pandemic world.
This Article analyzes privacy issues in this pandemic and offers a novel framework for crafting legislation during and after this pandemic to protect privacy. The Article takes a unique socio-legal approach in contextualizing privacy-related issues arising from this time of public health crisis, examining the impact of the coronavirus itself as well as contemporaneous social issues in America that have shaped the way we must think about privacy moving forward (primarily focusing on political unrest related to the 2020 election and growing tensions involving racism and discrimination). Ultimately, the Article proposes a framework that post-pandemic privacy law should follow and provides tangible legal and policy solutions, including a federal privacy law, updates to existing legislation to reflect specific privacy considerations, and focus on privacy as an integral part of foreign policy. Finally, the Article evaluates select privacy-related legislation that the U.S. Congress has proposed to date in light of the Article’s proposed framework and recommendations.