Thread on @tiffanycli’s must-read law review draft, “"Privacy in Pandemic: Law, Technology, and Public Health in the COVID-19 Crisis."

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3690004

My focus here: normalization issues.

First, Li identifies normalization as a problem with immunity passport proposals. “Normalizing immunological discrimination could pave the way for a loosening of discrimination laws and practices generally, particularly related to health discrimination, as well as for certain

sectors, like employment.” She adds: “it is likely that any programs that develop during pandemic response will have lasting effects on laws and norms for the future.”

Second, Li identifies a potential enduring shift in boundary management related to the home, which, of course,

has been the central domain of privacy protections. “The shift to remote work, aided by omnipresent monitoring and the use of video chat software, has eroded the line between office and home…This shift in contextual understanding may change the way we understand privacy in both

work and home contexts even past the pandemic. As society’s reasonable expectations of privacy shift, so too will our legal interpretation of such understandings and how the law should regulate technology and privacy.”

Third, Li notes that in-person corporate surveillance norms

and practices may be shifting. “Even as the pandemic subsides, some of these in-person surveillance measures may continue, at least for a period of time.” Indeed, if companies are investing in surveillance structure for remote and in-person work & they can extract ongoing value

from it post-pandemic through re-purposing, doesn’t this incentivize them towards path-dependency? Li seems to say it does. “It appears likely that employer surveillance will continue. If anything, the rise in employer surveillance during this pandemic will likely raise the floor

for employer surveillance after the pandemic is over… Even after the pandemic subsides, these changes in employment-surveillance norms will likely have long-term effects. Norms will shift, and societal expectations of privacy will shift, paving the way for even more employee

surveillance in the future.”

Fourth, Li observes a Zeitgeist-level shift. “Our expectations of privacy (reasonable or not) are changing…the integral roles of technology in this pandemic have also served to accelerate change in privacy norms. While it may be tempting to say that

some of these changes will be limited to the time of pandemic, it is likely that changes in norms will have longer effects over time."