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Seton Hall University, School of Law




Industry and government tried to use information technologies to respond to the COVID-19 pandemic, but using the internet as a tool for disease surveillance, public health messaging, and testing logistics turned out to be a disappointment. Why weren’t these efforts more effective? This Essay argues that industry and government efforts to leverage technology were doomed to fail because tech platforms have failed over the past few decades to make their tools trustworthy, and lawmakers have done little to hold these companies accountable. People cannot trust the interfaces they interact with, the devices they use, and the systems that power tech companies’ services.

This Essay explores these pre-existing privacy ills that contributed to these problems, including manipulative user interfaces, consent regimes that burden people with all the risks of using technology, and devices that collect far more data than they should. A pandemic response is only as good as its adoption, but pre-existing privacy and technology concerns make it difficult for people seeking lifelines to have confidence in the technologies designed to protect them. We argue that a good way to help close the technology trust gap is through relational duties of loyalty and care, better frameworks regulating the design of information technologies, and substantive rules limiting data collection and use instead of procedural “consent and control” rules. We conclude that the pandemic could prove to be an opportunity to leverage motivated lawmakers to improve our privacy frameworks and make information technologies worthy of our trust.

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