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Too Big for State Action?

-- By EricaPedersen - 28 Apr 2020

Public-Private Partnerships in the Age of Covid-19

The coronavirus pandemic has the federal government scrambling for a solution to minimizing the spread of the virus without shutting down vast swaths of the American economy for an extended period of time. Against this backdrop of crisis and uncertainty, Apple and Google have allegedly tabled their longstanding rivalry to assist the government in tracking infections. Dr. Fauci insists that this tracking is necessary to curb the spread of the virus and many other countries have been tracking their own citizens over the past few months (either “voluntarily” or by using spyware typically reserved for criminal investigations). However, there has been much opacity around the exact type of tracking mechanism that Google and Apple are developing, and many questions remain about whether it will, in fact, be “voluntary” and effectively measure exposure (particularly if Bluetooth remains the method of choice). Regardless, I worry that if we move forward with this data collection strategy and Apple and Google become our government’s go-to population-trackers, we will hit an inflection point in conceptions of data privacy which will be extremely difficult to police, hold accountable, and walk back when the pandemic recedes.

Policing Government Contractors

Public-private partnerships between technology companies and government agencies serve an extremely important purpose in a wide variety of different contexts. Private companies design and manufacture voting machines, enterprise software and web services, remote toll collection technologies, and algorithms used by agencies from social services to state judiciaries, to name only a few. These relationships are governed by procurement law and, in certain circumstances, private companies contracting with the government may be exposed to liability for constitutional violations.

The increasing centralization of the digital technology industry presents a concerning environment for ensuring that government contractors are effectively policed and held accountable by these legal doctrines. Apple and Google hold monopolistic (or oligarchic, depending on your market definition) positions with respect to the provision of data collection and analytics. The public should be extremely concerned about existing legal mechanisms’ abilities to ensure that these companies do not abuse their new position of power. For instance, the bidding and selection processes used by procurement offices are largely designed under the assumption that service providers will be selected from a competitive market. Reopening a bidding process and unwinding agencies’ reliance on services provided by Apple (notorious for designing products to lock-in their users) and Google would be a massive undertaking – possibly enough to perpetually deter disengagement and cancellation of the contract, no matter how large the company’s infraction.

State Action and Behemoth Tech

In class, we have discussed the myriad difficulties in enforcing the spirit of first and fourth amendment protections where digital technology is concerned, particularly given the piecemeal clausification and amassing of precedent based on outdated definitions and fundamental misconceptions of technological capabilities. However, we may not even have a chance to confront and chip away at these hurdles if a court deems that Apple/Google are not state actors and thus cannot be held liable for violating our constitutional rights.

According to 42 U.S.C. § 1983, to be held liable for a constitutional violation, a private party must have engaged in “state action.” In gauging whether state action is present (a rare finding even under the most favorable circumstances), federal courts apply three disjunctive tests: coercion, public function, and entwinement. There is substantial reason to be concerned that, given existing precedent, companies as large, wealthy, and autonomous as Google and Apple would never qualify as state actors under any of these three tests.

A Concerning Scenario

Suppose that Apple and Google roll out new software updates that incorporate a patch designed to track a user’s potential exposure to individuals who may be infected with coronavirus. According to infectious disease experts, such a system will only be effective if almost all device-holders have enabled the tracker, so Google and Apple unilaterally decide not to allow people to opt-out of the covid-tracking functionality (assuring us that all data remains “anonymized” and available only to government officials). Coders are also concerned that the widespread dearth of testing equipment will result in severe underestimation of cases, so they include intermediate categories that label individuals “possible positive” if they have been Googling coronavirus symptoms or their thermometer app recently logged fever-level body temperatures.

Devices bearing the “positive” or “potentially positive” label expose their carriers to all sorts of privacy violations and potentially retaliatory actions by others. For instance, landlords could begin refusing leases or renewals to tenants who, according to their map, may be a virus risk. Or employers decide to terminate workers who are deemed potential positives rather than risk higher future healthcare premiums that could result from those employees’ (and their dependents’) potential hospitalization costs.

Could affected individuals sue the developers of the tracker for violating their fourth amendment rights? Probably not. Although each of the three state action tests are fact-dependent, it is unlikely that any constitutional claim against Apple or Google would survive even a motion to dismiss. The coercion test requires a government actor to intervene and provide strong encouragement to defendant to effectuate the particular constitutional deprivation at issue. The connection here is likely far too attenuated to meet the coercion test’s nexus requirement. The entwinement test considers the organizational structure of the private entity and the government’s control over levels of organizational power, so plaintiff has no argument on this front. A plaintiff’s best argument might fall under the public function test – after all, the government has been tracking citizens via collection of census data for decades. However, this argument hinges on the particular definition of the function that Google and Apple provide to the government. Public health software services is not likely to be considered an “exclusive public function” under current doctrine and courts tend to interpret this test extremely narrowly.

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