Opinion: Public Health Trumps Privacy in a Pandemic
Opinion: Public Health Trumps Privacy in a Pandemic

Opinion: Public Health Trumps Privacy in a Pandemic

If governments were to use SARS-CoV-2 antibody tests to manage who can re-enter the workplace, society must accept a sacrifice of privacy.

John D. Loike and Ruth L. Fischbach
Apr 16, 2020

ABOVE: © ISTOCK.COM, HENADZI PECHAN

We propose an “ethical precautionary principle” in response to how governments should restart the economy from this pandemic. We define an ethical precautionary principle as a strategy used when approaching potential ethical harm under conditions where extensive scientific knowledge and data are lacking. In this situation, we propose an antibody certification process to identify those individuals who could safely return to work even though this process may violate ethical rights of privacy and confidentiality. Those with low or no titers of antibodies against SARS-CoV-2, the virus that causes COVID-19, will not be allowed to return to work until there is herd immunity or they are vaccinated.

Presumably, there will be extensive diagnostic testing of our population to establish who has sufficient protective antibody titers against SARS-CoV-2. In the short term, an in vitro test that measures neutralizing anti–SARS-CoV-2 antibodies may be sufficient to estimate what levels of antibody titers are protective. Measuring neutralizing antibodies in patients takes time and is expensive. Therefore, we can assume, like with measles titer diagnostics, that people who exhibit high levels of polyclonal antibodies against SARS-CoV-2 will also have sufficient neutralizing antibodies. The medical challenge here is to develop a standardized antibody titer test that is accessible to all and is scientifically accurate. This will take months to develop.

We advocate for antibody identification and certification using a voluntary app with the understanding and acceptance that we give up some of our rights to privacy.

As our nation starts to ease quarantines and stimulates the economy, we face ethical threats to valued rights of privacy and confidentiality. Privacy refers to the individual’s ability to control personal information that belongs solely to that individual. Confidentiality is the obligation that professionals owe to the individual to maintain and protect their information. The right to privacy is a highly protected ethical mandate that is used in many landmark decisions, such as patient-physician relationships (HIPAA) and Roe v. Wade. How then do privacy rights apply to the COVID-19 crisis? How would society enforce that only antibody-protected workers can return to the workplace?

Technology such as contact tracking can be extended to include the identification of antibody-protected individuals. (Contact tracing, in contrast, is an invasive process that involves identifying and following all contacts of an exposed or infected person.) Antibody positive or negative test results could be linked to cell phones via an app that can be tracked. One could envision that employers could gain access to this information to ensure that only protected workers who are ID-tagged can return to their jobs. Now, the question is, should this information also be accessible to the general public? For example, before entering a supermarket, one could check whether this public area is a “safe” zone (that is, all the people alongside you are immune) or an unsafe danger zone, where there are people nearby who have no antibody certificate or who are antibody negative.

See “What Do Antibody Tests for SARS-CoV-2 Tell Us About Immunity?

Does revealing antibody protection information violate personal privacy issues? Is knowing that your co-worker and a neighbor do not have high anti–SARS-CoV-2 titers infringe on their privacy? The duty to maintain confidentiality is not absolute and can be loosened under circumscribed conditions, such as when protecting one person’s confidentiality endangers another’s welfare or public health.

Decisions to breach confidentiality must be tempered by restraint in public health ethics. Health providers and government officials should always employ the least invasive, least coercive means necessary to achieve a vital public health goal. In general, we believe that diminishing the spread of the SARS-CoV-2 virus is a vital health objective that should trump respecting privacy and confidentiality, if necessary.

It must be noted that minority populations are less likely to be antibody tested, even if they contracted SARS-CoV-2 and were symptomatic, because there are limitations and barriers to their access to testing. It will be unfortunate and an unintended consequence if minorities will not have the documentation that allows them to return to work. This will further exacerbate the disparities confronting our society. It is unethical to create a two-tiered society of the haves and have nots. People will accept the privacy right infringement if there is equal access to testing for all.

We are not advocating contact tracing for COVID-19, though it is of proven benefit for mitigating the spread of diseases such as tuberculosis and Ebola, because it is much more invasive of privacy rights. Rather, we advocate for antibody identification and certification using a voluntary app with the understanding and acceptance that we give up some of our rights to privacy.

In fact, our annual flu vaccination protocols also involve giving up some of our rights to privacy. At major hospitals around the country, hospital workers are usually mandated to receive yearly flu vaccinations and on each of their ID badges a sticker is placed indicating that they have been vaccinated. Those who choose not to be vaccinated are required to wear protective masks when entering the hospital. Moreover, many airports use temperature monitoring systems to screen passengers who may carry a transmittable flu-like disease.

The proposed concept of an “ethical precautionary principle” is not a panacea. Given our current crisis, the ethical precautionary principle allows us to violate certain ethical principles such as privacy and confidentiality to facilitate our ability to return to some degree of economic and social stability before a COVID-19 vaccine is in place.

Making a special case for SARS-CoV-2 antibody titers to be openly accessible might induce additional anxiety among our citizens. Therefore, it is critical that public health officials and political leaders provide a transparent, well-supported rationale for antibody testing as we enter the recovery stage of COVID-19. In this crisis, our precautionary principle states that the need to promote the general physical, mental, and economic health of society outweighs the valued ethical rights to protect privacy and maintain confidentiality.

John D. Loike is a professor of biology at Touro College and University Systems and writes a regular column on bioethics for The Scientist. Ruth L. Fischbach is a professor both in the Department of Psychiatry at the Columbia University College of Physicians and Surgeons and the Department of Sociomedical Sciences at the Columbia University Mailman School of Public Health.