Civil Liberties and COVID-19
Posted: March 23, 2020|
It comes as no surprise that the massive preventative strategies being implemented to halt the spread of the virus have profound civil liberties implications. These measures go beyond just the quarantine measures and restrictions on travel. The public’s interaction with numerous institutions – schools, courts, town councils – are also affected when government makes sweeping changes in the face of a public health crisis.
The ACLU of RI remains dedicated to ensuring that, during this period of crisis, emergency responses from state and municipal leaders are rooted in science and public health needs, and that those emergency responses are not more intrusive on civil liberties than necessary. It is critical that protections for civil liberties and the maintenance of public health co-exist as we deal with this unprecedented modern emergency.
In that vein, the ACLU of RI has been closely monitoring and addressing a wide variety of issues related to government action aimed at halting the spread of COVID-19:
As a result of COVID-19, the state’s presidential primary, scheduled to take place at the end of April, has been postponed until June 2nd.
Because of the need for social distancing, there is general agreement that this rescheduled election must primarily rely on mail ballots. The ACLU, along with Common Cause and League of Women Voters, has offered input to elections officials to adopt standards and procedures that will help ensure that voters have sufficient time to participate by mail, and that the procedures established for doing this do not have the effect of disenfranchising voters. For example, current law requires mail ballots to bear the signature of two witnesses and a notary, which is a major, and likely unsurmountable, barrier for many individuals who are homebound or quarantined. At the same time, it will be important to have at least some polling places open across the state in order to accommodate individuals who may have difficulty voting by mail ballot due to disability or other reasons. All these thorny issues will need to be addressed quickly and correctly with regard to civil liberties, to avoid a devastating infringement on our right to vote.
As schools move to remote learning, basic questions arise as to whether vulnerable student populations will receive the education they need. It is easy to imagine that students with disabilities, English Language Learners, and families without access to computers or the Internet may face significant obstacles in obtaining the education they deserve. The state Commissioner of Education has acknowledged these concerns, and a dozen organizations have called on her to post online all the remote instruction plans that school districts have been ordered to submit. A major goal of the request is to make it easier for parents and advocates to review and compare plans and to ensure that remote learning does not exacerbate educational inequities.
The expansion of virtual learning for students also raises privacy issues of concern to the ACLU. A few years ago, we conducted a survey of school districts that loaned computers to their students so they could do schoolwork at home; ultimately we found an appalling lack of privacy protections among almost all districts which loaned these devices. In accepting the laptops, parents were often required to give school officials access not only to all of the content stored on the devices – even when parents and students were encouraged to use the computers for non-academic purposes – but they were also authorizing schools to surreptitiously activate the computer’s microphone and camera. An updated survey from 2020 shows that policies for these devices continue to allow inappropriate access by school staff, and, now that students have no choice but to use the devices at home, the ACLU will be urging school districts to amend these practices and strengthen privacy rights for students.
Inmates – confined in very close quarters and without easy access to hygienic supplies – are among the most vulnerable populations to the spread of COVID-19 and to the serious health ramifications that flow from it. Last week, the ACLU of RI wrote to officials at both the Department of Corrections and the Wyatt Detention Center, calling on them to take steps to address this serious health issue at their facilities.
The ACLU has not received any substantive response to these letters and remains deeply concerned about potential outbreaks of the virus there. This is an issue that public officials have not yet given the attention it deserves, and the ACLU will be considering next steps in order to prevent the untold consequences that could arise from an outbreak at these confined locations.
One of the ways of mitigating the potential harm is letting some people out of prison who don’t need to be there. In Rhode Island and across the country, advocates have called for the early release of inmates whose parole date is not far away, and the release of elderly inmates and those with serious illnesses who are most at risk of both catching the virus and facing adverse health consequences from it. Actions to this effect are beginning to take place elsewhere, and it is critical that public officials give this serious consideration.
In a related vein, the state needs to engage in a thorough review of the status of pre-trial detainees who are being held at the ACI simply because they cannot afford bail. Police and the Attorney General have a role to play in halting the churning of the pre-trial population by restricting the arrests and detention of individuals for minor offenses, who could instead be given citations to appear at court.
Government transparency and the public’s right to know are more, not less, critical during emergency situations. This past week, however, Governor Raimondo issued an executive order suspending certain provisions of both the Open Meetings Act and the Access to Public Records Act. While the ACLU recognizes that some relaxation of these laws is appropriate in light of social distancing requirements, the scope and breadth of the order are deeply concerning. In response, the ACLU and Common Cause have called on the Governor to revise the executive order to limit its reach and to make additional changes if it gets renewed after its one-month expiration date.
Both the State and Federal courts are closed for most business, and the literal lack of access to justice raises critical due process concerns. At the moment, though, the courts have taken steps to make sure they are open and available to address emergency matters that require accessibility. To give just two examples, the state courts will be open to hear pleas from arrestees and pre-trial detainees to reduce their bail, and they will continue to hold judicial bypass hearings for minors seeking abortions. The federal court order which shuttered the courthouse also made clear that the courthouse would be open to address “activities to support rights guaranteed by the Constitution.” This is another area that the ACLU will be monitoring continuously in order to protect access to justice for Rhode Island residents.
The General Assembly is closed for business until further notice. Some legislators have suggested conducting their business and voting remotely, but the ACLU has serious concerns about this approach because of the impact it will have on the public’s ability to both monitor and be heard on the General Assembly’s actions. For that reason, the ACLU presently opposes any efforts to hold remote sessions. At the same time, we must carefully monitor the actions of the Governor and other executive agencies exercising emergency powers in order to avoid abuses or overreaching of authority by them.
As the pandemic control measures either increase or decrease in severity, the necessary responses to breaches of civil liberties – and the balancing of interests – will shift. Because of the unpredictable nature of both the pandemic and the length and strictness of any preventative actions, close tracking of the progression of the above issues is priority for the ACLU.