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As governments the world over seek ways to jumpstart economic activity, one proposal is a so-called “immunity passport” that would allow certain people who test positive for COVID-19 antibodies to return to work before others. We at the ACLU have serious concerns about the adoption of any such proposal, because of its potential to harm public health, incentivize economically-vulnerable people to risk their health by contracting COVID-19, exacerbate racial and economic disparities, and lead to a new health surveillance infrastructure that endangers privacy rights. An immunity passport system is fundamentally different from a regime whereby employers routinely test workers for COVID-19 or screen for symptoms, to ensure that no one with active infection is entering a workplace. In the latter system, only contagious workers are prevented from going to work and only for the period of time in which they are contagious. Every worker is subject to the same screening rules. But an immunity passport system would divide workers into two classes — the immune and the non-immune — and the latter might never be eligible for a given job short of contracting and surviving COVID-19 if an immune worker is available to take the slot. To start, the science does not yet justify the use of immunity passports or certificates. The World Health Organization has stated that we do not yet know the level of protection that COVID-19 antibodies (which show that someone was previously infected with the virus) provide against reinfection, nor do we know how long such protection might last. There are also ongoing questions about the accuracy of various COVID-19 antibody tests, with more than a dozen such tests currently on the market producing inaccurate or inconsistent results. Even small error rates could make reliance on antibody tests unworkable, or dangerous for those workers who get a false positive for antibodies. Given the lack of scientific support for reliable immunity determinations, no significant policy decisions should currently be made on the basis of presumed immunity.    But even if we eventually were to gain confidence that individuals with COVID-19 antibodies may have immunity from reinfection for some period of time, there are serious civil liberties and civil rights harms from making workplace decisions on that basis. The widespread use of immunity passports by employers could create perverse incentives to contract COVID-19 for people who are the most economically insecure, as happened with a past outbreak of yellow fever in the United States. These incentives will be especially hard to counteract if immune workers are given preferential treatment in hiring or higher wages. The following are a few additional considerations that policymakers and private actors should consider.

As we enter the next phase of the COVID-19 pandemic, attention is turning to contact tracing. States and cities are gearing up to hire thousands of people to help identify and notify those who may have been exposed to the virus, in an effort to help reduce rates of transmission and keep the virus from growing exponentially within a community. The hope is that expanded testing will allow health departments to identify those who have the virus, and then reach out to anyone those people have been in close contact with and encourage those individuals to self-quarantine and get tested. We are being assured that our state health departments know how to do this, as it has been used with other communicable diseases, including HIV. While some comparisons being drawn between HIV and COVID-19 are often over-simplified, there are important things to learn from the public health response to HIV that should guide the implementation of widespread contact tracing for COVID-19. Contact tracing requires at least two key things to succeed: People must be willing to provide this information, and people must be able to act on it. To make that possible, health and contact information must be protected from unnecessary disclosure. We must also ensure that anyone who is required to self-isolate as a result of contact tracing has the resources to do so, and that criminalization never enters the picture. It is folly to expect anyone to identify close contacts if the consequence will be that they are ordered to stay home, in some cases leaving them with no way to support themselves and their loved ones. It is even less likely people will share information if it could expose themselves, their friends, or family to risk of arrest. There are some major differences between HIV and COVID-19 that bear on the relative balance of civil liberties and public health interests inherent to assessing any public health response. HIV is not spread through casual contact, whereas COVID-19 is. And unlike HIV, there are currently no treatments for COVID-19 that reduce viral load to the point that people cannot transmit the disease. That means the universe of potential contacts is much greater with respect to COVID-19. On the other hand, COVID-19 seems to have a relatively short incubation period – which means that only contacts from within a several week window of time after a person tests positive are relevant. There are also some important similarities: Both viruses can be spread by people who are asymptomatic and do not know their status. Both viruses are having a more devastating impact on already marginalized communities, including communities of color. And with both epidemics, we have seen scapegoating and blame, and egregious disparities in enforcement of public health restrictions by police. With those caveats, here are some critical lessons we can draw from our response to HIV:

Since the onset of the COVID-19 pandemic, protests have erupted across the country. Some are related to the virus: Protestors in Ohio and Michigan took to the streets and state capitols to call for an end to their governors’ stay-at-home orders. Others are calling out an ongoing injustice: the killing, often at the hands of the state, of Black Americans. Now, the rights of participants in protests across the spectrum could be at stake unless the Supreme Court weighs in on an important decision. In this episode of At Liberty, we speak with DeRay McKesson, an activist at the center of an important ACLU case that threatens our right to protest. In 2014, DeRay protested the killing of Mike Brown by police in Ferguson, and he’s been fighting on the front lines of the Black Lives Matter movement ever since. In 2016, he was arrested after another protester (we don’t know who) threw something (we don’t know what), injuring a police officer (whose name we don’t know) in Baton Rouge, Louisiana. If this case is allowed to move forward, it could mean the end of taking to the streets to stand up for our rights. We’ve asked the Supreme Court to stop this dangerous lawsuit in its tracks. DeRay discusses his experience as the plaintiff in the case, and his shock at how easily the government constructed its case against him in spite of a lack of concrete information about what happened that day in Baton Rouge. “If these things continue, the cost of being a protester will be so high that I can imagine it will lead to people choosing not to take part [in protest],” DeRay tells us of the high stakes of the case. He also shares his thoughts on how organizing and protest will continue, and even thrive, in the age of COVID-19. Though taking to the streets isn’t an option for many right now as we try to stay safe and healthy, DeRay is hopeful: “Online communities will be stronger than they’ve ever been, campaigns to call and email will continue to be strong. I think that we will redefine what it means to be in community … I’m hopeful because I see people organizing in new and interesting ways every day. You can listen to the episode here.

By the time a student graduates from college — particularly if they are a woman, LGBTQ, a person of color, or have a disability — the odds are high that they have experienced sexual harassment and assault. Over a quarter of women endure sexual assault during their undergraduate education, and more than half face harassment between 7th-12th grade. The experience of assault or harassment does not end with the incident, particularly for students who may have to see their harasser or assailant in class every day. Student survivors often develop anxiety and depression, and struggle to concentrate, which can result in poorer grades and skipping or dropping out of school. A single incident can derail a student’s life. Those students are mostly women.

Mia’s high school peers are completing class assignments from their school parking lot because they, like many families in their rural Maryland community, lack access to internet at home. Delina, a high school junior from Arizona, has to wait until all her younger siblings finish their schoolwork using the one computer at home before she can use it to start hers. One student from New Jersey fears that the lack of privacy protections for students using remote learning technology puts their mom at increased risk of deportation.   This is the reality of education in America during the COVID-19 crisis, according to the students who’ve shared their experiences with the ACLU. Students recently thrust into distance learning by school closures are worried they’ll fall behind their peers — or even have to repeat the school year — simply because their families can’t afford high-speed internet or a computer. Others fear marketers and other companies are collecting, storing, and even sharing their highly personal information because current remote learning technologies lack basic privacy protections.   We’re calling on Congress and state and local governments nationwide to take immediate decisive action to address the current education crisis in America. In letters sent to state and local officials in 23 states, we’re demanding all students have equal access to the technologies that make effective remote learning possible, and that states and school districts mandate the implementation of strong and uniform privacy safeguards to protect students when they are engaged in remote learning.

Aimee Stephens, a trailblazer in trans rights, passed away in her home this week at the age of 59.  Together, we sued for discrimination after Aimee was fired from her job for being transgender. When Aimee decided to fight back, she just wanted it to be acknowledged that what happened to her was wrong. She ended up making history by bringing the Supreme Court its first trans civil rights case. Aimee died before the Court issued a decision on her case, but the fight for trans rights continues in her honor.

One recent Friday night, President Trump quietly nominated a replacement inspector general (IG) for the Department of Health and Human Services (HHS). But this was no ordinary nomination. If confirmed by the Senate, it will force out the acting IG after her office released a survey of hospitals that, to Trump’s vocal displeasure, underscored his administration’s botched handling of the COVID-19 pandemic.   The ouster is also only the latest in a series of troubling actions by the president against the nation’s inspectors general, including firing Michael Atkinson, the inspector general of the intelligence community, and demoting the Pentagon’s acting inspector general, which then made him ineligible to serve on the newly-created Pandemic Response Accountability Committee. The new HHS IG nomination itself came amid a top HHS official’s statement that the Trump administration demoted him for refusing to support the president’s promotion of scientifically unproven treatments for the novel coronavirus. The official has now filed a retaliation complaint seeking an investigation by the HHS IG.   This personnel chaos, together with news reports of a broader scheme by the president to purge more IGs, has sparked reminders from leaders across the political spectrum about the crucial role of inspectors general in countering waste, fraud, and abuse in the federal government. But the damage from Trump’s moves won’t be limited to more public dollars lost to corruption and graft. It also endangers our civil liberties.   As background, inspectors general are nonpartisan watchdog officials who investigate and offer recommendations to correct incompetence, misconduct, and violations of law within the agency they serve, in addition to ensuring honest financial and administrative management. Most federal IGs are required by law to keep both their agency and Congress fully apprised of “serious problems, abuses, and deficiencies” in the federal programs and operations they oversee. As Republican senators and Democratic committee chairs explained in their reactions to Trump’s personnel maneuvers, Congress depends on IGs to do its own job. They are a vital mechanism for ensuring integrity and accountability in the federal government.   That’s why over the years, the ACLU has called on IGs across federal agencies to investigate government actions with harmful impact on civil liberties and rights, such as the Justice Department’s involvement in warrantless spying on Americans. And when IGs reveal government wrongdoing or ineptitude, we demand reforms — like when an IG exposed Immigration and Customs Enforcement failures that jeopardize the health and safety of people detained in its custody, and when another IG found that the FBI’s investigative practices lacked even basic civil liberties safeguards.   Independence is pivotal to an inspector general’s success and effectiveness. And that’s precisely why the president’s actions are so alarming. The common thread in his machinations against IGs is his hostility toward independent oversight of his administration, especially by those he deems insufficiently loyal to his personal interests.   Atkinson’s example is notably illustrative because he had disclosed to Congress, in accordance with the law and to Trump’s dismay, a whistleblower report that detailed the president’s abuses of power in the Ukraine military aid scandal. As the president complained, that act of fulfilling his duty showed Atkinson was “not a Trump fan.” The resulting message from the president is painfully obvious: Act like a “Trump fan” — or else. And as the former Republican chair of the House Oversight Committee warned, “Inspectors General can’t be effective if they believe looking for waste and abuse could cost them their job.”   Over the longer term, Trump’s attacks against oversight threaten democratic accountability by weakening a systemic safeguard that is meant to expose injustices by those wielding government power. A president who declares both that he has “total authority” and that “I don’t take responsibility at all” for his decisions cannot be trusted when he claims “I’ll be the oversight” on anything.   The assault on IGs also poses a more immediate threat by undermining oversight of the federal pandemic response, which is beset by problems like the dire shortages of medical supplies highlighted by the acting HHS IG and the tendency of the Trump administration’s political leadership to hide key facts and figures from the public. The Justice Department IG has announced an investigation of another problem, that of federal prisons predictably emerging as deadly hotspots — and this investigation will be conducted under the cloud of a retaliation threat.   All hope is not lost, however. As a start, Congress should shore up the legal framework governing IGs with safeguards against presidents firing IGs based on a whim. It should also add stronger protections for those who

Wykivia and Ideare Bailey were taking every precaution. Worried for their asthmatic daughter due to the spread of COVID-19, the couple was meticulous in cleaning, sanitizing, and social distancing to reduce every possible threat. However, when Ideare was arrested for property theft and booked into the Dallas County Jail on April 6, there was no way to adhere to those precautions. Held in a crowded intake room, he could not maintain six feet of distance from other people. Forced to live in a dormitory with 60 other people — for meals, downtime, sleeping, bathing, everything — Mr. Bailey knew that he was in trouble. On phone calls with his wife Wykivia, she could hear men coughing loudly in the background. Without a mask and no way to stay apart from the men coughing in his dorm, Mrs. Bailey told her husband to cover his mouth with a t-shirt while he slept. Unfortunately, none of this was enough. Mr. Bailey grew sick, and progressively worse each day. Despite numerous requests for medical care and multiple trips to the infirmary, the nurses would not even take his temperature. After four days of growing worse, jail staff finally took his temperature on April 10 — it was 106 degrees Fahrenheit. Three days later, Mr. Bailey tested positive for COVID-19. The next day, for the first time since his incarceration, the jail gave him a mask to wear. Even after the diagnosis, the medical care Mr. Bailey received in the jail with COVID-19 did not amount to much; he had his temperature checked each day and received Tylenol. As it got harder to breathe, Mr. Bailey became scared. If he wanted to get a nurse’s attention, he had to bang on the window of his cell. The jails did not administer insulin for his diabetes, and his oxygen levels were not checked. His wife — left with few options to protect her husband, and busy caring for their children alone — grew desperate. She had a panic attack that required EMS to come to her house. Wykivia Bailey went to incredible lengths to get her husband home where he could self-isolate, hydrate, and receive proper nutrition. Because Ideare Bailey was only incarcerated because he could not afford bail, Mrs. Bailey hired a lawyer to seek a bail reduction. Even after seeking the reduction, the family could not afford the bail or a non-refundable deposit to a bondsman. Undeterred, Mrs. Bailey sold her wedding ring to make a bail deposit — money she will never get back. The only barrier left was a requirement that Mr. Bailey be fitted with an ankle monitor. Yet after all these efforts, Dallas County officials refused to release Mr. Bailey — even after his bond had been paid. The reason? Pretrial services staff refused to touch him because he had contracted COVID-19 in the jail. When his wife pleaded with the pretrial services department to release her husband, the staffer told her, “If he wasn’t out there breaking the law, then he wouldn’t have been put in the Dallas County Jail to catch COVID.” Ideare Bailey became one of twelve plaintiffs in a federal civil rights lawsuit brought by the ACLU and partners against the Dallas County Jail for its failures to keep incarcerated people and staff safe in the wake of COVID-19. As COVID-19 spreads rapidly throughout local jails, many officials fail to see the humanity of the people whose health and well-being they are responsible for. People like Mr. Bailey have petitioned the federal courts during this frightening and unprecedented time for emergency intervention. Further, as Mr. Bailey’s story illustrates, all too often people are left behind to suffer and even die despite doing everything they can to seek their freedom. Jails and prisons are the most dangerous places in America during the COVID-19 crisis — eight of the 10 largest “hotspots” for the virus are jails and prisons. As incubators for the disease, outbreaks in jails cause more infections, hospitalizations, and preventable deaths not only for those who live and work in the jail, but the entire surrounding community. Yet officials like those in the Dallas County Jail have failed to sufficiently reduce the population to enable social distancing, or to get those most vulnerable out of the dangerous environment: Dallas officials continue to detain over 2,000 people who are over 50 years old or who have underlying medical conditions that make them particularly vulnerable to serious illness or death as the disease sweeps through the facility. In late April, the ACLU and our partners had a four-day hearing via videoconference in our request for emergency relief on behalf of hundreds of people like Mr. Bailey. Two medical doctors, a formerly incarcerated man, a guard at the Dallas County Jail who had been told not to wear a mask because it would “spook” the people incarcerated, and Wykivia Bailey all testified. We sought an order that would bring the jail into compliance with public health guidance and gain the release of the most vulnerable people. All the lawyers, witnesses, and staff were allowed to participate in this unusual, lengthy, and detailed hearing from the safety of our offices and homes in social isolation. To this day, our clients remain crowded in bunkbeds, arm’s length apart. Last week, the federal court denied our emergency request without explanation. We are still waiting for a reason. The fight to hold officials to account and to address this unfolding public health and human rights catastrophe is ongoing, and our advocacy in and out of courts across the country continues. Families like the Baileys are depending on us.

This piece was first published on USA Today. Andrea Circle Bear was 30 years old and had only recently given birth when she died of COVID-19. Circle Bear was incarcerated for a drug-related charge at the time of her death. She spent the final weeks of her pregnancy in a local jail and then a federal prison, spaces that are known hotbeds for virus transmission — and it’s likely in one of these places that she contracted the virus. She shared the planet with her baby for only 28 days before she passed.  While much attention has rightly been given to the risks of COVID-19 in prisons, jails, and detention centers, the risks to pregnant and postpartum women like Circle Bear have largely been overlooked. Pregnancy alone does not appear to be a risk factor for severe illness from COVID-19, but the data is clear that incarceration compounds the dangers associated with pregnancy. They are much more likely to get infected in prison or jail than in the community. People who are incarcerated also have higher rates of underlying medical conditions —as Circle Bear did — that put them at increased risk of severe COVID-19 illness. Some suggest that people in prisons or jails who have symptoms of COVID-19, including those who are pregnant, be placed in solitary confinement as a form of quarantine. But solitary confinement can be especially damaging to prison or jail populations that are pregnant  or have recently given birth because it can limit access to timely, adequate medical care. During this time of rampant coronavirus spread and attempts at social distancing to avoid infection, it’s imperative that pregnant populations are prioritized for release and diversion from prisons, jails and detention centers.  The situation is dire.