During the COVID-19 pandemic, many people proudly sported t-shirts, caps, stickers, and other accessories with the words “I Will Not Comply,” “I Did Not Comply,” “He/She/It Did Not Comply,” or “Ze/Zim/Zhir Did Not Comply.” Actually, if you use ze/zim/zhir, you probably did comply. And many people who lived in Massachusetts probably happily complied as well.
But if you lived in Massachusetts and had an Android phone, you didn’t need a hat, shirt, or sticker. Whether you complied or not, the Massachusetts Department of Public Health may have been keeping an eye on you during the great period in American History known as “5,000 Days to Slow the Spread” or something. The health department may have done so by working with Google to install tracking technology on Android phones without the users’ knowledge or, for that matter, their permission. The National Civil Liberties Alliance (NCLA) contends that the department teamed up with the tech giant to do just that and has filed a lawsuit.
The suit, Wright v. Massachusetts Department of Public Health, et al., alleges that the movements of one million Android users in the state were covertly tracked ostensibly to monitor COVID, starting June 15, 2021. The suit has nine counts on behalf of the plaintiffs, Robert Wright and Johnny Kula. Those counts include violations of the plaintiffs’ Fourth and Fifth Amendment rights under the U.S. Constitution as well as violations of Articles X and XIV of the Massachusetts Declaration of Rights. NCLA provides an outline of the suit in the video below.
In a press release, the NCLA states that the app did not appear on the user interface and could only be located by opening the settings and accessing the “view all apps” feature. So in just about every case, Android users had no idea that they were being tracked. But if a user did find and delete the app, the health department simply reinstalled it.
Sheng Li, serving as litigation counsel for NCLA, commented, “Many states and foreign countries have successfully deployed contact tracing apps by obtaining the consent of their citizens before downloading software onto their smartphones. Persuading the public to voluntarily adopt such apps may be difficult, but it is also necessary in a free society. The government may not secretly install surveillance devices on your personal property without a warrant—even for a laudable purpose. For the same reason, it may not install surveillance software on your smartphone without your awareness and permission.”
Senior counsel Peggy Little added:
The Massachusetts DPH, like any other government actor, is bound by state and federal constitutional and legal constraints on its conduct. This ‘android attack,’ deliberately designed to override the constitutional and legal rights of citizens to be free from government intrusions upon their privacy without their consent, reads like dystopian science fiction—and must be swiftly invalidated by the court.”
Welcome to the soft tyranny of the 21st century. Perhaps an Android user in the Bay State decided to stand up to the demand that they get their shot and their boosters, and perhaps they were outspoken about that. But they were complying nonetheless, and they couldn’t refuse. They didn’t even know.
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