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During this pandemic, preserving public health has, rightly, been our nation’s top concern. But a lively debate has arisen during this time about whether that top priority necessarily means that other values – such as privacy – need to give way. If tracking people’s location will facilitate contact tracing and enforcement of shelter-in-place mandates, do we give governments and commercial partners carte blanche to track our whereabouts? Will enforcing longstanding privacy requirements impede the flow of life-saving public health information?

Fortunately, we do not live in a zero-sum game, where we must choose either our health or our privacy. Indeed, as the nation’s primary privacy enforcement agency, the FTC has long struck a balance between protecting consumer privacy while facilitating information flows. And, during the pandemic, the FTC has continued in this role, such as by providing:

  • Guidance to ed tech providers, schools, and parents about navigating privacy and security issues;
  • Advice for businesses and consumers about how to safely use videoconference services (our new way of connecting) in a way that protects privacy; and
  • Tips on how to use artificial intelligence technology (which can be a tool for targeting public health resources) in a fair and non-discriminatory manner.

If your business is looking to leverage consumer data to do your part in this crisis, we offer these tips on how to provide these services in a privacy protective way:

Consider privacy and security as you’re developing your products and services, and not after launch.

We’ve brought cases against start-ups, most recently against smart-lock manufacturer Tapplock, for rushing to get a product to market without considering privacy and security issues. Although we will be flexible and reasonable when it comes to bringing enforcement actions against companies engaged in good faith, thoughtful efforts to address the effects of the pandemic, it doesn’t pay to be in the news for privacy and security problems, and then have to retreat to address them.

Use privacy protective technologies.

There are many engineering tools that can preserve consumer privacy while getting the data you need to combat the coronavirus. For instance, researchers have developed privacy-friendly, decentralized protocols that allow users to voluntarily share encrypted data directly with epidemiologists.

Consider using anonymous, aggregate data.

Using anonymous, aggregate location data for public health purposes will allow you to sidestep many of the privacy concerns related to tracking individuals’ location. For example, if a consumer has granted you permission to use their location data, nothing would prohibit you from disclosing a heat map of average distances travelled for public health purposes. A consumer’s consent for this use of aggregate, anonymous data would not be required.

Delete data when the crisis is over.

If you tell consumers you’re collecting, analyzing, using, or sharing information for emergency public health purposes, only use it for those purposes, and delete the data when the need is over. This idea of “purpose limitation” or “use limitation” has been a standard tenet of privacy norms over the years. And it also forms the basis of an allegation we made in our 2019 Facebook complaint, where we alleged that the company violated the FTC Act by claiming that it collected users’ phone numbers for a consumer-protective security purpose, but used the information for advertising as well.

Navigating this crisis is requiring our resilience, patience, and strength. Navigating the crisis while also preserving values that we cherish – like privacy – is doable, with a bit of creativity and forethought.


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