Health care or spyware? Lawsuit attacks Mass. COVID-tracking app

The lawsuit was filed by the Washington-based New Civil Liberties Alliance, an organization that often litigates on behalf of conservative and libertarian causes. The organization receives much of its funding from conservative philanthropist Charles Koch.

The alliance is suing on behalf of Robert Wright of Massachusetts and Johnny Kula, a New Hampshire resident who commutes to Massachusetts every day. Both men denied having a COVID tracing app installed on their phones 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 used a smartphone’s Bluetooth radio to alert people if they came into contact with someone infected with the disease. An infected person’s phone will send an alert to nearby people running the same app. These people would receive a message asking them to get tested for COVID.

Dozens of states have released such apps, including Massachusetts. But few people willingly used the Massachusetts version. According to the lawsuit, the state health department worked with Google to create a version that was installed on all Android phones without the phone owner’s permission.

Sheng Li, litigator for the New Civil Liberties Alliance, said this involuntary download policy violates the US Constitution’s Fifth Amendment, which prohibits government agencies from taking a citizen’s property without adequate compensation. The memory in a smartphone belongs to the owner, and “the government can’t take your property without giving you some kind of justification,” Li said.

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Android owners have a choice of whether to enable the Massachusetts app. But the lawsuit alleges that the app sends and receives data through its Bluetooth radio even when it’s not activated. This data can be accessed by Google and a variety of apps installed on Android phones, the lawsuit alleges. If enough data is collected from enough phones, data scientists can “de-anonymize” the information and figure out the identities of the phone users.

Li said a government-sponsored app that collects user data without permission violates the Fourth Amendment, which prohibits arbitrary searches and seizures of personal property. Li added that the lawsuit does not concern Apple’s iPhone, which offers a similar contact tracing system, as his organization has not received any complaints from iPhone users about potential invasions of their privacy.

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 involved in this case is at the bottom of the list of things that should concern smartphone users,” Crockford said. “While the value of the technology in terms of reducing virus transmission has not been demonstrated, we have seen no evidence that the system violates people’s privacy.”

A spokesman for the Department of Health declined to comment on the lawsuit, and Google did not respond to requests for comment.

Hiawatha Bray can be reached at [email protected]. Follow him on Twitter @GlobeTechLab.