Health care or spyware? The lawsuit attacks the comprehensive COVID-tracking app

The lawsuit was brought by the Washington-based New Civil Liberties Coalition, an organization that litigate frequently on behalf of conservative and liberal causes. The organization receives much of its funding from philanthropist Charles Koch.

The coalition sued on behalf of Massachusetts resident Robert Wright and Johnny Cola, a New Hampshire resident who commutes to Massachusetts every day. The two men objected to the COVID-tracing app being installed on their phones without permission. Cola 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 warn people if they have come into contact with someone who has the disease. The infected person’s phone sends a warning to people nearby who are running the same app. These people will receive a message urging them to take a COVID test.

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

This policy of involuntary downloading violates the Fifth Amendment to the US Constitution, which prohibits government agencies from seizing a citizen’s property without fair compensation, said Sheng Li, a litigation attorney for the New Civil Liberties Alliance. The memory inside the smartphone belongs to the owner, he told me, and “the government can’t take your property without giving you some kind of justification.”

Android owners are given the option to activate the Massachusetts app. But the lawsuit claims that the app transmits and receives data through its Bluetooth radio even when it is not activated. The lawsuit claims that this data can be accessed by Google and through a variety of apps installed on Android phones. If enough data is collected from enough phones, data scientists can “de-anonymize” the information and learn the identities of the phone users.

Lee said a government-sponsored app that collects user data without permission violates the Fourth Amendment, which prohibits random searches and seizures of personal property. Lee added that the lawsuit is not related to Apple’s iPhone, which offers a similar system for contact tracing, because his organization has not received any complaints from iPhone users about potential breaches of their privacy.

Cady Crockford, director of the Technology for Freedom Program at the American Civil Liberties Union of Massachusetts, viewed the suit skeptically.

“The technology involved in this case is pretty low on the list of things that should matter to smartphone users,” Crockford said. “While the value of the technology in terms of reducing transmission of the virus has not been demonstrated, we have not seen any evidence that the system is violating 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.


Hiawatha Bray can be reached at hiawatha.bray@globe.com. Follow him on Twitter @tweet.

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