The world is watching anxiously to see what happens with the coronavirus that originated in Wuhan, China. As scientists and public health officials in the United States learn more about the virus, and as we all see how bad the outbreak turns out to be, it is important that public policymaking remain firmly centered around science.

Unfortunately, our history of reactions to infectious disease outbreaks suggests that if this outbreak becomes severe, we’re likely to see strong pressure to the contrary. In particular, we can expect three things:

We can expect some to panic.

Unfortunately, there tends to be disproportionate hysteria and exaggerated fear around infectious diseases — especially when they are new. In 2009, the appearance of the H1N1 (aka “swine flu”) virus prompted some to call for measures like closing the U.S.-Mexico border, an enormously disruptive measure that, among other things, would have led to billions of dollars in lost economic activity. The H1N1 turned out to be a normal strain of the seasonal flu virus. In late 2014, many panicked over the Ebola outbreak ravaging West Africa, including a number of U.S. governors who imposed politically-motivated quarantines on health care workers and others returning from West Africa. Those quarantines were completely unjustified by science. (In 2015 the ACLU, the Yale School of Public Health, and Yale Law School released a major report analyzing the response to Ebola.)

Every disease is different and merits different public health responses. A person infected with Ebola, for example, is not contagious until after fever and other symptoms begin. That appears not to be the case with the coronavirus, and scientists’ recommendations will no doubt differ as a result. But no matter how bad any disease outbreak may get, responding in ways that are not supported by science is never the right thing to do.

We can expect pressure for counterproductive responses.

Most panicky responses to disease outbreaks, according to epidemiologists and other experts, only make things worse. In particular, law enforcement-type approaches to stopping the spread of communicable disease such as quarantine and forced treatment are, as three preeminent public health experts put it, “generally acknowledged by experts to be either completely ineffective or only potentially marginally effective” in slowing the spread of disease.

Public panic will predictably spark calls for “tough,” even draconian measures that treat the problem like a law enforcement or national security issue rather than a public health matter. We at the ACLU have always acknowledged that civil liberties must sometimes give way when it comes to fighting a communicable disease — but only in ways that are scientifically justified. And the public health community has learned over time that treating sick people like potential enemies only spurs them to “go underground” and avoid the authorities, which exacerbates the spread of disease. The evidence is clear that travel bans and quarantines are not the solution. Also counterproductive are the targeting and stigmatization of vulnerable populations, another historically frequent response to frightening epidemics.

We can expect that Trump will lead the panic, not calm it.

In previous disease scares, Donald Trump has been among the most panicky and scientifically ungrounded public voices in the United States. During the West African Ebola outbreak in 2014-15, he opposed allowing American doctors infected with the disease to be airlifted back to the United States for lifesaving treatment (tweeting, “KEEP THEM OUT OF HERE”). He also called for blocking all air traffic from West Africa.

As one expert advised in 2015, “Officials should avoid unrealistic reassurances or taking unnecessarily stringent measures so as to appear decisive.” Even in the earliest stages of the present outbreak, President Trump managed to violate the first half of that guidance, rashly and unrealistically telling the nation of the Wuhan virus, “We have it totally under control.” If things get worse, history suggests he’ll violate the second half as well and react with theatrical, counterproductive “toughness.”

The job of our political leaders is to solicit and follow the guidance of public health experts in crafting a calm and rational response to an outbreak, to help the public understand the scientific facts of this disease, and to present an honest and mature appraisal of risk and the limits of human power to curb nature. Unfortunately, Trump and his administration have a terrible record when it comes to listening to scientists.

We don’t know how bad this outbreak will be. If this one is not severe, another one probably will be in the future. And the more dangerous an actual outbreak, the more important it is that our authorities respond with cool heads and based on science, and not intrude any more than strictly necessary on people’s civil liberties.

Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project

Kirsten finally found true happiness — she met her best friend, soulmate, and other half. In 2014, they decided to marry and began the arduous immigration process. They were three years into the process when President Trump announced the Muslim Ban, throwing their future into disarray. In 2020, their daughter Alexandria is now a toddler. She knows her father best from video conversations. Their dreams are slipping away with the harsh reality that under Trump’s Muslim Ban, they may never be together in the United States. Kirsten was one of many who shared how the ban affects their lives — families separated, weddings postponed, and lives uprooted.

As Kirsten said, “As an American citizen, I should have the right to ‘pursue happiness,’ as stated in our Constitution.” Kirsten draws the poignant parallel to the infamous 1944 Supreme Court decision in Korematsu v. United States, which upheld Executive Order 9066, banishing Japanese people, including U.S. citizens, from their homes and forcing them into prison camps. As Kirsten noted, “Thoughts of Korematsu loudly resonate, as my husband is being discriminated against based on his origin. The lessons of Korematsu were taught in classrooms not for just educational purposes, but so as to not let history repeat itself.” 

Thousands echo her fears: “I am [a] U.S. resident and haven’t seen my spouse for 15 months. We need help,” Farshad said. 

“I was born and raised in the U.S. and I am very heartbroken to be discriminated against and separated from my soulmate just for a mere visa that is delayed due to discriminatory policies, I really hope this nightmare is over soon so my wife and I can start our family here in the United States,” Ali shared.

Trump’s ban reaches beyond the United States’ borders and across the world. Three years ago, fulfilling an abhorrent campaign promise, Trump announced his first Muslim Ban within days of assuming the Oval Office. Immediately, nationwide outrage followed, as people of all walks of life rushed to the airports and to the courts. Courts rejected that first version as well as the order the administration crafted to replace it. Finally, those temporary measures were replaced by the current proclamation, which likewise bans millions of people — the majority of whom are Muslim.

The Supreme Court allowed the proclamation, which bans most people from Iran, Libya, Somalia, Syria, and Yemen (and a small number of North Koreans and Venezuelans), to go into full effect in December 2017. In June 2018, the Supreme Court issued an opinion allowing it to continue in effect while litigation continues. As Justice Sotomayor cogently explained, the majority could reach this conclusion only by “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals.” 

This ruling is one that will go down in history as one of the Supreme Court’s greatest failures — one that repeats the mistakes of the Korematsu ruling by allowing the administration’s mere mention of national security to excuse the even the most blatant and shocking discrimination. And since the Supreme Court ruling, the Trump administration has issued more bans on asylum-seekers and certain people who cannot prove they will be able to obtain health care.

Now, Trump plans to expand the Muslim ban even further. 

This is why Congress must pass the NO BAN Act. Speaker Pelosi has already announced that this bill will be moving forward. It is essential that it move forward in its current form and put an end to this list of abuses and allow families like Kirsten’s to be together and for fathers to meet their children. 

The proposed legislation would:

• Immediately rescind the Muslim Ban, asylum ban, and refugee ban, ending these discriminatory orders and abuses of authority by the Trump administration
• Require the executive branch to meet a more stringent standard — based on “credible facts” that any suspension of or restriction from entry must be connected to “specific acts” that have actually occurred
• Require that any such suspension or restriction meet a compelling government interest and that the government use the least restrictive means to meet such interest
• Establish a system of checks and balances whereby Congress would be routinely notified and briefed on the status, implementation, and constitutional and legislative authority of the executive branch’s actions
• Prohibit discrimination based on religion, prohibiting presidents from using such rank prejudice against a religion in lieu of individualized consideration in the visa process

With the NO BAN Act, Congress has the opportunity to right the administration’s, and the Supreme Court’s, wrong, and prevent Trump from harming more communities. Congress must act to end this discrimination, allow families to be together, and to halt the President’s broad overreaches of power.

Manar Waheed, Senior Legislative and Advocacy Counsel, ACLU

The federal government is once again trying to force Apple to weaken the security of millions of iPhones. On Wednesday, President Trump issued a call from Davos, Switzerland for Apple to assist law enforcement in unlocking iPhones. Last week, Trump made the same demand of Apple, tweeting that the company should unlock cell phones as a quid pro quo for any benefits it enjoys as a result of favorable U.S. trade deals.

Buying off private parties to do police bidding is neither good trade policy nor good law enforcement. Regardless, President Trump’s attorney general, William Barr, has made this fight one of his signature issues. In July and October of last year, he gave speeches that pushed for tech companies to design their products to ensure law enforcement access to our secured communications. This month he initiated a public spat with Apple, criticizing the company for failing to unlock the Pensacola shooter’s iPhone.

But there is considerable global demand that communications software provide strong encryption to protect users — and for good reason. Encryption is our strongest defense against abusive governments, hackers, and organized crime. Encryption also provides anonymity to dissidents, whistleblowers, and human-rights defenders so they can freely express themselves, organize, and expose governmental abuse without fear of retribution.

Requiring technology companies to build a government backdoor into our encrypted communications would break that crucial defense, empowering repressive governments like China and Iran to obtain and abuse private communications.

This is not just about the Pensacola investigation, or any one criminal case. Satisfying the government’s demand would undermine the security of millions of other iPhone users, and make them all more susceptible to government abuses, identity thieves, credit card fraud, and other criminal activity. If technology companies build security weaknesses into their products, unwanted attackers will use those weaknesses for crime and abuse.

This is why Apple went all in resisting the FBI’s effort four years ago to unlock an iPhone (and the ACLU supported Apple), why Google rapidly deployed secure encryption across all its data streams, and why Facebook is making end-to-end encryption the default on WhatsApp, Messenger, and Instagram.

But law enforcement and intelligence agencies have not given up. Attorney General Barr’s public relations campaign implies that the Department of Justice will only seek information with a lawfully-issued search warrant. At the same time, the DOJ has been telling federal courts across the country that it does not need a search warrant to obtain our emails or other private data. Nor are all of the Department’s search warrants legally justified. The FBI has been spying on Black Americans, including arresting and detaining one man for his First Amendment-protected Facebook posts.

Encryption providers have the law on their side. The Fourth Amendment generally requires a search warrant before police can seize and read our private correspondence. A warrant gives police permission to search, but it doesn’t entitle them to plaintext information that doesn’t exist. Moreover, there is no law in the U.S. requiring individuals to ensure our private communications are available to law enforcement.

Technology providers also have a number of government agencies on their side. The Commerce and State Departments have argued internally that mandating encryption “backdoors” will have negative economic, security, and diplomatic consequences. The Federal Trade Commission, charged with protecting consumer privacy, pushes encryption as a means to secure consumer data from theft.

Former government officials are also pushing back on DOJ’s claims. Jim Baker, who was the FBI general counsel responsible for the agency’s litigation against Apple, recently wrote that it was time to accept that end-to-end encryption is here to stay, citing in part the fact that “relevant cybersecurity risks to society have grown disproportionately over the years when compared with other risks.” The former director of the National Security Agency and the Central Intelligence Agency, Michael Hayden, argues that encryption backdoors will empower authoritarian governments without helping law enforcement, as criminals will simply switch to services designed overseas.

Nevertheless, the Department of Justice has doubled down — often in secret and under sealed legal proceedings — on its efforts to compel device manufacturers and social networking companies to undermine the security promises they make to us. For instance, in 2018, Reuters reported on a failed FBI attempt to force Facebook to wiretap encrypted voice conversations on Facebook Messenger. The public to date doesn’t know exactly what the FBI demanded that Facebook change about Messenger, how that change might affect the security and privacy of other Messenger users, why the court denied the request, how many other times the FBI has made such a request, or how many other companies have received one. We also don’t know who has complied with the government’s requests in the past, or under what legal interpretation. The ACLU and EFF have sued to unseal the court opinion, and will be in court on April 3rd to argue that the law should be public in a democracy.

The government’s attempts to force developers to build insecure products, or to undermine existing security measures, as it is attempting to do with Apple right now, are dangerous and unlawful. Law enforcement does not and should not have the authority to commandeer innocent third parties into becoming its undercover agents, spies, or hackers. The Department of Justice and members of Congress should abandon attempts to undermine our security, and instead focus on policies that encourage widespread adoption of strong encryption. We should be leading the global community by example, making it clear that the United States supports and encourages secure infrastructure for our society, and that we consider excessive surveillance powers held by anyone a problem — not a solution.

Jennifer Stisa Granick, Surveillance and Cybersecurity Counsel, ACLU Speech, Privacy, and Technology Project