Advocates say Cuomo is delaying action on protecting contact tracing data

Gov. Andrew Cuomo has been talking a lot lately about how the Trump administration is not doing enough to ensure that future COVID-19 vaccines reach communities of color. “We need a vaccine distribution plan that gets into those poor communities,” Cuomo said during his appearance today on “Ebro in the Morning.” Such an inclusive plan requires more federal funding for states, as well as additional efforts to address privacy concerns, according to Cuomo. “Undocumented people distrust the federal government and believe they may use the vaccine process to identify them for deportation,” Cuomo said Sunday.

Despite the governor’s stated privacy concerns about federal vaccine plans, he has yet to act on a bill passed unanimously by state lawmakers nearly four months ago that would block police and immigration authorities from accessing the personal data gathered by contact tracers. While praising the governor’s efforts to address inequities with vaccine distribution, some advocates say he is missing out on a big opportunity to address privacy concerns as a second wave of infections begins sweeping across the state. 

“There are steps right now in New York state that he can take to protect personal information and shore up confidence in our COVID-19 response efforts,” said Allie Bohm, a policy counsel at the New York Civil Liberties Union, which has led a coalition of advocacy groups in support of the bill. “That first step really is signing the contact tracing confidentiality (bill).”

The new legislation would ban police and immigration authorities from serving as contact tracers and otherwise obtaining contact tracing information. Additional bill language makes improperly obtained contact tracing data inadmissible in court or administrative proceedings. Exceptions can include medical emergencies and public health research investigations where the information is properly anonymized, according to the legislation. 

Cuomo spokesperson Rich Azzopardi said in an email that advocates’ concerns are misplaced. “This is already the policy and this legislation merely seeks to codify it,” Azzopardi emphasized. “(The governor’s office) did find some technical mistakes in the bill and we are working with the houses to clarify it.”

New York City and the governor’s office have expressed some concerns about how the bill would apply to third parties who help public health agencies collect data, according to Assembly Health Committee Chair Richard Gottfried, who sponsored the legislation with state Senate Health Committee Chair Gustavo Rivera. Such concerns, however, are no reason for the governor to delay signing the bill – which would take effect immediately – because additional legislative fixes could be made in early 2021, Gottfried said in an interview. “I think we can work out language that will satisfy the governor’s concerns – but that doesn’t mean the governor will feel that way,” he added.

New reporting by the New York Post highlights how the New York City Police Department has used an obscure subpoena process to obtain data from phone companies, banks, internet service providers and social media platforms. Federal immigration authorities also have an extensive record of leveraging tools like driver’s license databases and facial recognition software. Even if existing barriers prevent police or immigation authorities from accessing contact tracing data now, there are still concerns about whether people will have confidence that their data is really safe. “It makes lots of sense to us that we would at this time support legislation that would make communities feel safer about their data,” Brian Romero, a policy associate at Gay Men’s Health Crisis, said of the contact tracing bill that his nonprofit supports. Privacy concerns are why the state already has safeguards in place to bar the disclosure of personal information pertaining to contagious diseases like HIV/AIDS. 

Beyond encouraging more participation in contact tracing, the legislation is also part of broader efforts to protect vulnerable people through outstanding legislation and greater awareness of privacy threats in digital spaces. “It’s mind-boggling,” said Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project at the New York University School of Law. “Contact tracing data is far more invasive than any data we will obtain as part of the vaccine rollout.” Research by the Surveillance Technology Oversight Project also highlights some of the vulnerabilities of the BlueTooth technology used in contact tracing apps like the one released by the state months ago. “We’ve been calling on Albany to enact these sorts of protections since March,” said Cahn, who hosts a podcast called Surveillance and the City. “We don’t want a Facebook Cambridge Analytica with our public health information,” added Bohm of the NYCLU.

Gottfried is working with advocates to develop new legislation to address the types of data concerns highlighted by Cuomo about the upcoming vaccine distribution process. In the meantime, the push continues to get Cuomo to act quickly on the contact tracing bill, though it remains unclear just how quickly the governor will act. “Our advocacy will not only affect the speed with which he will do it,” Gottfried said of the outstanding legislation, “but I think it will also help him understand that this is something valuable and important.”