The lawsuit was filed by the Washington-based New Civil Liberties Alliance, an organization that often advocates on behalf of conservative and libertarian causes. The organization receives much of its funding from conservative philanthropist Charles Koch.
The alliance sued on behalf of Massachusetts resident Robert Wright and Johnny Kula, a New Hampshire resident who commutes to Massachusetts daily. Both men objected to having a COVID tracing app installed on their phone without permission. Kula also said that when he deleted the app, it reappeared on his phone.
At the height of the COVID pandemic, tech giants Apple and Google developed a system that uses a smartphone’s Bluetooth radio to notify people if they come into contact with someone infected with the disease. An infected person’s phone would transmit a warning to nearby people running the same app. These people would receive a message inviting them to get tested for COVID.
Dozens of states have released such apps, including Massachusetts. But few people voluntarily used the Massachusetts version. According to the lawsuit, the state health department worked with Google to develop a version that was installed on all Android phones, without permission from the phone’s owner.
Sheng Li, a litigator for the New Civil Liberties Alliance, said the unintentional downloading policy violates the Fifth Amendment to the US Constitution, which prohibits government agencies from taking a citizen’s property without fair compensation. The memory inside a smartphone belongs to the owner, and “the government can’t take your property without giving you some kind of justification,” Li said.
Android owners have a choice whether or not to enable the Massachusetts app. But the lawsuit alleges the app transmits and receives data through its Bluetooth radio even when it’s not turned on. This data is accessible by Google and by a variety of apps installed on Android phones, the suit claims. If enough data is collected from enough phones, data scientists can “de-anonymize” the information and determine the identity of phone users.
Li said a government-sponsored app that collects user data without permission violates the Fourth Amendment, which prohibits random searches and seizures of personal property. Li added that the lawsuit did not involve Apple’s iPhone, which offers a similar contact tracing system, because his organization has not received any complaints from iPhone users about possible harm to their lives. private.
The lawsuit was viewed with skepticism by Kade Crockford, director of the Technology for Liberty program at the American Civil Liberties Union of Massachusetts.
“The technology at issue in this case is very low on the list of things that smartphone users should be concerned about,” Crockford said. “Although the value of the technology in terms of reducing viral transmission has not been demonstrated, we have not seen any evidence that the system violates people’s privacy.”
A spokesperson for the Department of Public Health declined to comment on the lawsuit, and Google did not respond to requests for comment.