Contact Tracing, Civil Liberties and Public Health (Narrative)

Introduction

As the realities of COVID set in, leaders in many sectors began strategizing about how to limit its spread. A traditional public health response to infectious disease usually involves contact tracing, an effective yet laborious process. In search of quicker, easier approaches, many people have looked to technological solutions, which raise many questions and concerns about both efficacy and privacy. Our investigation asks how Jewish values might inform our approach to public policy.

What is traditional contact tracing?
Generally, if someone tests positive for an infectious disease, the result is reported to the public health department. Someone from that department will reach out to the infected person to make sure they are getting the care they need and preventing further spread. The public health professional will also ask for the names and contact information of anyone else who may have been infected. The public health department then continues to check in on the original person who was infected, as well as their contacts to make sure they get tested, and treatment if needed. The information stays within the public health department.

What is being considered for COVID-19, and what are the concerns?
There have been proposals to quicken this process by tracking people's whereabouts using cell phone GPS data or bluetooth data, without explicit permission. Civil liberties advocates warn that this “surveillance based contact tracing” raises concerns about where and how the data is both stored and used. These concerns affect everyone, but especially the most vulnerable members of society. In our research, we considered in particular the experience of undocumented people in the United States who face threats of arrest, detention and deportation. During the pandemic, when COVID-19 is spreading unabated in detention facilities, interactions with ICE may be a death sentence. Would ICE as a government agency have access to this public health database as well?

Framing: How do we arrive at contemporary Jewish ethics?

The following text by Rabbi Elliot N. Dorff offers an instructive framing that has guided how we think about mining ancient Jewish texts to address contemporary ethical questions:

Elliot N. Dorff, “A Methodology for Jewish Medical Ethics.”
If… we judge that innovations in medical practice have made conditions relatively different from what they had previously been, we will have to stretch some halakhic and aggadic sources beyond their original meanings. We should do this in order to retain clear connections to the tradition… at the same time, we should openly state what we are doing- namely, that we are choosing both the texts to apply and the interpretations of those texts in order to develop a Jewish medical ethic which carries tradition, Jewish concerns effectively into the contemporary setting.¹

Since the start of COVID-19, the Center for Jewish Ethics has put out a set of resources for guiding communities in making ethical decisions. In this clip Rabbi Mira Wasserman explains the reasoning for using a format which presents multiple Jewish values at play.

Rabbi Mira Wasserman, Center for Jewish Ethics

Jewish Values and the Coronavirus

Video courtesy of Reconstructing Judaism

As we explore a Jewish approach to contact tracing and civil liberties, we will draw considerably on Rabbi Wasserman’s approach, asking: what are the multiple values at play in this conversation? How do those values relate to each other? Where are they in tension, and where do they work in tandem?²

Values for Considering Contact Tracing:

Health, Privacy and Community

1. Preserving Life

As the reality of COVID-19 hit American Jewish communities, the call for shutting synagogue doors and following public health guidelines often came in the language of pikuach nefesh, the value of saving a life. Pikuach nefesh is a very important value in Jewish tradition. In order to understand how to bring the value of pikuach nefesh into the conversation, we must understand its power as well as its limitations.

Pikuach Nefesh as an Overriding Value
The obligation to keep Shabbat is a serious imperative; Exodus 31:14 states, “you shall keep the Sabbath, for it is holy for you. He who profanes it shall be put to death: whoever does work on it, that person shall be cut off from among his kin.” And yet, in the following text from the BabylonianTalmud, Massechet Yoma, we see a series of different Torah-based explanations for why saving a life should override the obligation to keep Shabbat, which is itself a clear, primary obligation in the Torah.

• Why did the rabbis need to include so many different approaches to this principle?

• What does this suggest about the way we should approach contact tracing efforts as a matter of saving life?

Is Preserving Life Always Primary?
It is clear that preserving life takes precedence over Shabbat, but how should we apply this concept to responding to COVID-19?

Even though there is clear precedent for violating Shabbat to save a life, it becomes much more complex if the question is around saving lives of people who aren't immediately in front of you.

Since the start of the pandemic many Jews have raised questions about how the value of pikuach nefesh should change their behaviors, or not, especially in cases where it is not clear whose life would be saved or if anyone’s life would be saved by one’s particular action or behavior.

For example, the Jewish owner of a sewing factory which produced face masks wondered about violating Shabbat in order to create more of these masks which reduce COVID transmission. He presented his question to Rabbi Aryeh Klapper. The following is an excerpt of Rabbi Klapper’s teshuvah explaining one way to consider how the power of the pikuach nefesh imperative might interplay with other values.

Rabbi Aryeh Klapper, A Teshuvah Regarding Pikuach Nefesh in a Time of Pandemic

CMTL Shavuot Reader 2020 Edition

[The concept of] Shomer petaim Hashem [literally, “the Lord preserves the simple”] allows people to engage in at least some forms of dangerous but remunerative employment, so long as the risks involved are considered negligible by one’s society. Similarly, Rav Aharon Lichtenstein zt”l would ask when teaching Bava Kamma, which assigns compensation for all the various destructive things that bulls can do: Why didn’t the Torah just ban owning bulls? Rabbi Dr. Moshe Tendler asks the same question on the societal level...If pikuach nefesh overrides everything, why is it permitted for a state to build parks, rather than spending its entire GDP on healthcare?

The answer is not that jobs, bulls and parks are more important than pikuach nefesh. Rather, we need to recognize that “most important” values should not become “exclusive values.” Preserving life is an enormous value, but other values are what makes life worth preserving. Shomer petaim is just one of the 17 principles halakhah used to hedge pikuach nefesh about and ensure that it does not utterly dominate the halakhic scene.

• What other values in your life might push back against the value of saving a life?

Trust and Expertise

To be able to observe the value of pikuach nefesh, our tradition recognizes the value of public health expertise. Our exploration of the value of preserving life must go beyond rabbinic opinion to include medical and public health expertise. We include below an example of rabbinic precedent for honoring such expertise in order to save lives.

Rabbi Elliot Dorff highlights the text above to demonstrate that it is improper for a Rabbi to make their home in a city that lacks basic social and medical services³. In a similar vein the Rabbis here recognize their own expertise is insufficient for creating a healthy Jewish life, and highlight other community experts as vital for a well functioning community. In order to determine the efficacy and safety of a contact tracing system, Jewish ethicists must rely on the expertise of public health professionals that devote their lives to saving others.

The following text, a comment from Rashi on Sanhedrin 33a, points out the sociological dimension of expertise.

The Talmudic text that prompts Rashi’s comment, in summary, argues that if an expert judge makes a mistake in their ruling, the case may be retried, but if a non-expert judge makes a mistake, that case may not be retried and instead the judge must compensate the aggrieved party of the lawsuit. Rashi offers the following explanation for this distinction:

According to Rashi, an expert is respected enough in their communal authority to admit their mistakes and may be regarded as more trustworthy by doing so.

It is irresponsible for community leaders today to respond to rapid changes in scientific consensus with nihilism and sowing mistrust of medical expertise. To change one’s mind in the face of new information and even to admit mistakes actually builds trust in the legal process, explains Rashi; a lesson we would be well cautioned to remember with regards to the scientific method today.

2. On Privacy

The American legal concept of a "right to privacy" does not translate exactly into the Jewish lexicon. However, we identified three ways that Jewish tradition honors the concept of personal privacy.: (1) even loan collectors may not barge into someone's house, (2) value in concealing your personal life/body and (3) one should have permission before sharing what someone has told you.

No Barging In
The following text comes directly from Torah.

• What precedent does it set in terms of how individuals must treat each other on an individual level?
• How might this instruction apply to how communities should behave on a communal level when it comes to our conversation about contact tracing?
  

Watch Your Windows
The following midrash comes from the Babylonian Talmud in a conversation about building walls in shared courtyards. The midrash introduces Balaam, a prophet in the book of Numbers, who was pressed by a Moabite king to curse the wandering Israelites- but in the end Balaam can only bless them.

• What was so inspiring about the way the Israelites had set up their tents?

In the two above sources we find examples of privacy concerns in terms of how much outsiders can access one’s private life by seeing or entering their physical space. In both contexts a person’s private life is at risk of being invaded directly. However, sometimes we are comfortable with sharing information in a certain context, or with certain people, but we find it an invasion of privacy if that information is shared more broadly. In the following selection R. Musya shares a midrash about the importance of getting permission before sharing someone’s private matters with another person:

• Why is it important to get permission before sharing someone else’s information?
• How should the value of sharing people’s private information only with permission inform a contact tracing process?
  

Here we learn the value of privacy from God’s example. As Elliot Dorff explains, “God, as understood in the Jewish tradition, is in part known and in part hidden… If God is to be a model for us, then, we, like God, must take steps to preserve our own privacy.”⁴

In our tradition, privacy is not a right bestowed on us from God, but a necessary component of being created in God’s own image. We have the obligation to both guard our own privacy, and to not infringe upon the privacy of others.⁵

Contact Tracing and the Jewish Value of Privacy
Our reading of these texts about Jewish approaches to privacy suggests that any contact tracing system must be built with great sensitivity to the use of people’s personal health information. People are justified in keeping their information to themselves, as demonstrated by the rule that a loan collector may not barge into someone’s house and it is honorable to set up one’s home in a way that creates privacy from the outside world within it. Medical information is personal information, and people will lie to their doctors or avoid participating in health systems that they don’t trust. Either behavior would undermine the public health effort to fight COVID-19. To build an effective contact tracing system, people must understand why it is valuable to share their COVID status and who will have access to this information, and must give explicit permission for their information to be used for the purpose of stemming the transmission of the disease.

3. The Necessity of Community Trust

When it comes to surveying the whole community, Jewish history- from the Bible to the modern era - reveals deep anxiety. The final Jewish value that influenced us, community trust, helped point us to our recommendations.These sources are informative not only of our fears, but of our values that should guide the way we think about the proper handling of data collection by the governing authority.

Don’t Count the Jews!
The preceding discussion of the value of privacy is centered around the obligations and responsibilities of the individual. But the tradition and the historical record also highlight a Jewish concern for protecting the privacy of a group and a fear of harmful use of public information. In the sources below concerning the taking of a census, we learn that our ancestors took their collective privacy seriously.

• Why would Jews be concerned about being counted?
• What power does the information gathered in a census give the census taker?
• Under what circumstances might someone want that information about themselves gathered?
  

These biblical sources opposing census taking evolve into a broader opposition to counting Jews at all (e.g. the tradition of not pointing and counting off individuals for a minyan), and various theological explanations for this tradition develop: the idea that only God can count us or that human beings cannot reduce other human beings to a number.⁶

Surveillance and Civil Liberties: Contemporary and historical examples
The current crisis is not the first time in American or Jewish history that the values of protecting both civil liberties and public health have seemed to be in tension. We have relied on Jewish-American history and American law not only as sources in themselves, but as examples for how to have a values-based discussion on public policy.

Alan M. Kraut, “Immigration, Ethnicity, and the Pandemic.”

At times, native-born Americans' fear of disease from abroad became a rationale for an equally great and preexisting prejudice, fear of the foreign-born, or nativism… At the end of the 19th century, tuberculosis was dubbed the “Jewish disease” or the “tailor's disease… Not surprisingly, the Spanish influenza epidemic of 1918 aroused fears of anti-Semitism within the Jewish immigrant community. History had taught Jewish spokespeople that they must at all costs deflect blame for the pandemic away from Jewish immigrants lest they trigger the sort of medicalized anti-Semitism they had left Eastern Europe to escape. At the same time, the health and safety of the people had to be protected by discussing disease prevention in every available public forum... Foreign-born physicians, ethnic community leaders, and the foreign-language press were important mediators between public health officials and immigrants. They labored to diminish fears of the native-born that newcomers might be responsible for the epidemic. Institutions organized by the ethnic groups to which the newcomers belonged provided much-needed assistance to their own and to others during the crisis...The foreign-born needed information and assistance in coping with influenza. Among the two largest immigrant groups, Southern Italians and Eastern European Jews, immigrant physicians, community spokespeople, newspapers, and religious and fraternal groups shouldered the burden. They disseminated public health information to their respective communities in culturally sensitive manners and in the languages the newcomers understood, offering crucial services to immigrants and American public health officials.⁷

Notice that epidemic-induced prejudice against immigrants can create a climate of fear that could inhibit public health. When we think about contact tracing, which is aimed to be in service of public health, we must consider that any public health effort that exacerbates prejudice against, or fear of authorities among, immigrant communities may in fact undermine those very efforts.

Furthermore, we see precedent from our own community’s immigrant experience for one of our core recommendations for protecting both public health and civil liberties today: public health officials working with trusted sources of authority in local communities. Kraut’s account demonstrates how effective this strategy can be.

We learn from this source that the best way to support both civil liberties and public health in a population at risk is to partner with them. By decentralizing authority and working with local communities we can make sure our efforts to protect our health and liberty are mutually reinforcing.

American Legal Precedent: Weighing Conflicting Values
In 1905 Massachusetts was one of only 11 states that had compulsory vaccination laws. Cambridge Pastor Henning Jacobson had a negative reaction to smallpox vaccination when he lived in Sweden, so he challenged the law in court. The supreme court ruled in favor of the state's laws, setting precedent for limiting personal liberties when it comes to public health concerns. Justice Harlan explains how even the highest value of a community must exist within a framework in which other values may supersede it due to circumstances. We found this framework to be instructive in thinking through the tension between multiple Jewish values at play in the question of contact tracing. As we have shown, the Jewish value of pikuach nefesh holds a similar weight as a Jewish value as the concept of liberty does in the American context.

Jacobson v. Massachusetts, 197 U.S. 11 (Justice Harlan, 1905)

Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members (197, 27).But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that… “Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.”(197, 26).⁸

• According to this ruling, why does fighting an epidemic get to limit individual liberty, the “greatest of all rights”?
• This ruling was written over a hundred years ago. Do the concepts hold up today?
  

Contemporary Concerns: Introducing Surveillance Technology
In 2020, concerns about civil liberties in the context of COVID19 both draw on historical precedent like our sources above, and must take into account a whole new level of technology based surveillance concern. GPS and bluetooth enable new kinds of tracking, and data collection capacities raise all kinds of new possibilities and concerns around access and privacy.

How should we consider technological possibilities for combatting COVID-19, while also preserving liberty? The following source is an excerpt of a webinar on surveillance issues and the COVID pandemic, hosted by T'ruah. Jay Stanley from the American Civil Liberties Union discusses how the concept of civil liberties can break down in the context of epidemics, and how civil libertarians consider moving forward. The full video clip includes valuable explanation of contemporary surveillance issues around contact tracing.

Jay Stanley

Human Rights and Surveillance during COVID-19

• What are the main principles at play for the ACLU in considering civil liberties during an epidemic?
• How do the ACLU positions on civil liberties during an epidemic relate to the Jacobson vs. Massachusetts ruling?
• How have you seen the Jewish community respond to infringements on personal freedoms due to COVID-19?
• Have there been references to civil liberties concerns in the Jewish communal responses that you have been aware of?
  

Conclusions

We began our project with the task of exploring the tension between liberty and security in the context of public health response to COVID-19. Essentially, our underlying concern was that public health measures would infringe on important civil liberties. However, it became quite clear to us that contact tracing in its traditional form works to promote public health when it goes hand in hand with honoring individuals’ privacy. Effective public health efforts and civil liberties are not at odds in the fight against the spread of COVID-19.

It is important to note that in order for any contact tracing to work, a key factor is people's ability to stay home. Especially in immigrant communities, the fact that many members of the community are "essential workers" and the lack of public resources assuring access to food and continued housing necessitates people leaving their homes. If anyone is serious about stopping this disease through effective contact tracing, we must work on creating a stronger public safety net so that no one has to choose between having food to eat or possibly spreading a disease. We know people will go to work sick if they need the pay. Studying how to build this kind of public safety net was beyond the scope of our project, but we understand that it is a primary ethical and public health concern.

We can and must commit to building, supporting, and complying with trusted and effective contact tracing initiatives in the effort to stem the spreading disease.

Contact tracing initiatives that honor Jewish ethics should include the following qualities:

• Built in collaboration with trusted local community leaders. The historical experience of American-Jewish immigrants during the 1918 flu epidemic highlights that panic and distrust of leaders can severely undermine public health initiatives. Community “insiders” offer crucial mediation that builds trust and encourages compliance.
• Involve evidence that the strategies are actually effective at saving lives. In order to justify overriding the value of privacy for individuals and communities, authorities must demonstrate that a contact tracing initiative fulfills the value of preserving life.
• Involve explicit permission from participants. People are more likely to trust and participate in a public health system if their privacy and agency are valued.
• Respect the privacy of individual health information now and in the future. Our ancestors' resistance to being counted shows a strong Jewish value of protecting personal information from authorities who might exploit it.

As new technologies present themselves to further the contact tracing effort, Jewish values call us to consider how to use them in ways that protect privacy and build community trust so we can use the tools effectively to save lives.

Footnotes:

1. Elliot N. Dorff “A Methodology for Jewish Medical Ethics,” in Contemporary Jewish Ethcis and Morality: A Reader, edited by Elliot N. Dorff & Louis E. Newman, 166. New York: Oxford University Press, 1995.
2. We are indebted to Rabbis Elliot Dorff and Mira Wasserman who each served as consultants for our research and in each of these sources they emphasize the relevance and vitality of our tradition at addressing contemporary concerns.
3. Elliot N. Dorff, Matters of Life and Death: A Jewish Approach to Modern Medical Ethics (Philadelphia: The Jewish Publication Society, 1998), 29.
4. Elliot N. Dorff, Love your Neighbor and Yourself: A Jewish Approach to Modern Personal Ethics (Philadelphia: The Jewish Publication Society, 2003), 38.
5. For example, hilchot tzni’ut, (“modesty concerns), and hizik reiyah (“sight damages”), respectively.
6. Strident Jewish opposition to census taking is independently attested as well, for example, both Josephus and Luke-Acts report that some Jews rebelled over the Roman census of Judea in 6 C.E. See Antiquities, 18:3-10, 23. Luke 2:2, Acts 5:37. It should be noted that political opposition to the census may have been just as motivating as a theology against non-divinely ordained counting. That is, a census is a necessary component of the taxation and military conscription processes as well. King David’s census is tied expressly to that latter point in II Samuel 24:9
7. Alan M. Kraut, “Immigration, Ethnicity and the pandemic,” Public Health Reports 123 Suppl 3 (2010): 123-33, doi:10.1177/00333549101250S315
8. Jacobson v. Massachusetts, https://supreme.justia.com/cases/federal/us/197/11/#tab-opinion-1921098