Why is there widespread support for suspending Freedom of Assembly during the pandemic, but not for suppressing privacy?

Question

Pretty much every news outlet in the US these days supports the lockdowns despite them violating the First Amendment - from CNN to Fox News. Everyone seems to agree that lockdowns are inevitable, even if there are slight disagreements over what their scope should be at a given point of time. However consensus is a lot murkier when it comes to suspending privacy. For example, discussions of the recent Apple/Google contact tracing initiative all mention privacy concerns:

What if I don't want my phone to do this?

Don’t install the app, and when the operating systems update over the summer, just leave the “contact tracing” setting toggled off. Apple and Google insist that participation is voluntary, and unless you take proactive steps to participate in contact tracing, you should be able to use your phone without getting involved at all.

And security experts are generally opposed to the idea:

Despite Apple and Google’s emphasis on privacy, some remain concerned about its implications – particularly with the collecting and handling of sensitive healthcare data.

Sergio Caltagirone, vice president of threat intelligence at Dragos, for instance outlined his concerns with the technology in a Twitter thread, calling it “literally a real-time walking health report.” He also worried that the data would be used to “discriminate against people, as fear of coronavirus will rise as we leave large-scale quarantine.”

So why are Americans wholeheartedly open to involuntary restrictions of their outdoor activities, but not open to restrictions on their privacy? Contact tracing cannot work efficiently unless most people have the app installed, so it would be paramount for everyone to have it on their phones - just like it is paramount for everyone to stay at home to minimize the number of infections. To expand the analogy:

1. Everyone must have the app -> everyone must stay home
2. The app must be on at all times -> you cannot go far even if you're going to a deserted beach
3. Such tracking doesn't violate the 4th amendment -> such lockdowns don't violate the 1st amendment
4. Those who fail to enable the app outside are punished -> those who go outside without an essential reason are punished
5. China has proven app based tracking works -> China has proven lockdowns work

Answer 1

I think the fears expressed by some human rights groups are that such invasive tracing mechanisms might be "here to stay" once implemented. In contrast, it's a lot easier to roll back public assembly bans (which essentially don't rely on any new infrastructure or mechanisms in their implementation) once a public health crisis passes. (I'll try to find some quotes in support.)

For example, some European proposals with regard to smart-phone-based contact tracing, differ from the simple GPS phone tracking implemented in South Korea. The Swiss proposal for example:

“Our protocol is demonstrative of the fact that privacy-preserving approaches to proximity tracing are possible, and that countries or organisations do not need to accept methods that support risk and misuse,” writes professor Carmela Troncoso, of EPFL. “Where the law requires strict necessity and proportionality, and societal support is behind proximity tracing, this decentralized design provides an abuse-resistant way to carry it out.”

And Tech Crunch itself editorializes (a bit):

What’s crystal clear right now, though, is that without a thoughtfully designed protocol that bakes in privacy by design contacts-tracing apps present a real risk to privacy — and, where they exist, to hard-won human rights.

Torching rights in the name of combating COVID-19 is neither good nor necessary is the message from the group backing the DP-PPT protocol.

Answer 2

The answer is likely to be different for everyone who feels this way, but there are some differences that could explain the different attitudes:

How essential are the measures to the goal?

It is clear that to prevent people having contact with other people you need social distancing, and that is only possible if most people stay out of public spaces most of the time, and do not meet up in private spaces. However, contact tracing has been used as a tool of disease management for much longer than people have had smart phones; therefore, these measures are not so obviously essential. For example, India is using large scale in person contact tracing, with phone records as a secondary backup.

Who is making the rules

The government is requiring people to stay in their homes. Many people trust the government. Apple, and particularly Google, are in the business of selling people's data, and so elicit less trust when they ask for it.

How are the measures implemented

Even if we accept that smart phone based contact tracing is required, there are decisions to be made about how this is implemented. Methods that require location data to be held by a central authority, such as those in China and South Korea, require trust in a central authority. Methods that require distribution of personally identifiable information to all contacts, such as that proposed by Apple and Google, require trust in those you contact. This could be avoided, for example using cryptographic technologies to identify contacts rather than personally identifiable information. The app could be released as open source, and available on open source platforms, allowing widespread validation of security claims. There are schemes that try to address all these concerns, but those currently in place do not.

Public Communication

As the first major action taken by the state has been to implement social distancing rules, there has been an accompanying communication campaign. This has made it clear to many people how important this is. There has not yet been such a campaign to explain the importance of contact tracing, and the added power that smart phone based tracing could bring. If and when such a campaign is implemented, public opinion is likely to shift. (thanks divibisan).

Answer 3

First of all the idea that the "right to assemble" would somehow supersede the inalienable right (as identified in the Declaration of Independence, for one) of life, iteself, is not a given.

"your right to swing your arm leaves off where my right not to have my nose struck begins." - John B Finch

It is very clear that gatherings can present a very direct risk to the health and welfare of others. The concept that someone with a transmittable contagion being allowed to be quarantined for the benefit of public health is not a novel or unheard of concept. Keep in mind, also that this is being done at the state level, not the federal, but the powers do exist in federal law -

The federal government derives its authority for isolation and quarantine from the Commerce Clause of the U.S. Constitution.

Under section 361 of the Public Health Service Act (42 U.S. Code § 264), the U.S. Secretary of Health and Human Services is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.

CDC website: Legal Authorities for Quarantine and Isolation

I think the reason why it passes Constitutional muster is that this isn't something that can be done willy-nilly - there generally has to be some sort of declaration of a public emergency, either federal, state or both, and the courts have repeatedly allowed suspension of Constitutional rights in formally declared emergency situations or times of war.

This in not only recognized nationally but in many nations and internationally -

Under international law, rights and freedoms may be suspended during a state of emergency; for example, a government can detain persons and hold them without trial. All rights that can be derogated from are listed in the International Covenant for Civil and Political Rights. Non-derogable rights cannot be suspended. Non-derogable rights are listed in Article 4 of the ICCPR; they include right to life, the rights to freedom from arbitrary deprivation of liberty, slavery, torture, and ill-treatment.

A couple of key notes on that Wikipedia passage would be the "right to life," and "freedom from arbitrary deprivation of liberty."

Wikipedia: State of Emergency

When people are frightened for their lives, they tend to give up certain freedoms more easily, right or wrong, cowardly or not.

Also, there is a very direct link between gathering or not in groups and the spread of disease.

While one may make the argument that tracking individuals might be a tool to help with a ban on gathering of groups, the risk and history of those kinds of surveillance powers being abused, with no public benefit, and the lack of detail on both a plan on how that would be used (do we even have the capability of using that tracking information in a meaningful way) and what safeguards would be in place is a much more nebulous and less direct benefit/cost connection.