The misguided and extremely flawed SAFEHOME policy
The Trump Administration is considering a proposal which would create the Health Advanced Research Projects Agency (HARPA), a research agency dedicated to “out-of-the-box” solutions to health problems. The leading advocate for HARPA is former NBC chairman and longtime friend of President Trump, Bob Wright.
At the outset, I don’t see a fundamental problem with a federal research agency dedicated to innovation and improvements in healthcare. Regardless of how I feel about the head executive, the idea behind the agency itself doesn’t seem inherently wrong. After all, it was Nixon’s administration that proposed the Environmental Protection Agency as a way to combat pollution. So there may be disagreements surrounding how HARPA should be run, but the creation of the agency itself doesn’t appear unsound. According to the Washington Post, former Vice President Joe Biden also supports the creation of HARPA.
It is worthwhile noting that while the Trump Administration can propose the HARPA blueprint, Congress has the authority to create – or not create – such an agency.
The Post reported on a proposal, in an effort to curb gun violence, from Wright and the HARPA advocates. It will be titled SAFEHOME, Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes, which calls for exploring whether technology including phones and smartwatches can be used to detect when mentally ill people are about to turn violent.
“The violence detection plan has alarmed experts studying violence prevention, technology, psychology and mental health,” wrote the Post.
Okay, now this is a problem. Not only is the policy proposal misguided, but also fundamentally flawed. Misguided because, according to MentalHealth.gov, “The vast majority of people with mental health problems are no more likely to be violent than anyone else. Most people with mental illness[es] are not violent and only 3%-5% of violent acts can be attributed to individuals living with a serious mental illness. In fact, people with severe mental illnesses are over 10 times more likely to be victims of violent crime than the general population.”
The SAFEHOME project would seek to research volunteer subjects to determine whether you can detect a future violent episode from their personal devices. Since the subjects are volunteers, they will waive their reasonable expectation of privacy, and therefore their constitutional rights will not be violated. But the door to governmental surveillance is not a door any of us should jump to open. SAFEHOME could theoretically provide a foundation for future policy proposals advocating for targeted governmental surveillance of mentally ill Americans.
But could the government actually impose technological surveillance of mentally ill Americans in an effort to curb gun violence? Short answer: probably not.
Any future proposal attempting to surveil Americans for gun violence prevention would have issues around making an arrest before any criminal act has been committed. Beyond that, the Fourth Amendment provides, among other things, a right of privacy and protects individuals from warrantless searches. The Supreme Court in Katz v. U.S. determined that governmental surveillance, specifically through a recording device, was indeed a search protected by the Fourth Amendment. Thus, since individuals maintain a reasonable expectation of privacy, the government must obtain a warrant before conducting a wiretap-like surveillance operation.
Do we maintain a reasonable expectation of privacy in our phones and smartwatches? It would likely depend on the user’s knowing exposure. Essentially, you give up your reasonable expectation of privacy when exposing information to potential “public inspection.” See California v. Greenwood. Postings on social media, for example, would seemingly fall under the category of information available for public inspection.
What level of knowledge constitutes knowing exposure? Pictures saved through the cloud, private messages through social media apps, my Google search history, I might have an expectation of privacy around these, but I also know Google and other social media companies are tracking and selling my personal data to other corporations. Does my knowledge of this shatter any reasonable expectation of privacy? The rapid changes in technology and social media have unknown effects on our privacy rights.
The SAFEHOME policy rests on a mistaken belief about mentally ill Americans, and pushes the boundaries protecting our privacy rights. This may seem like only taking an inch, but giving an inch inevitably leads to taking a mile.
Matthew Buzard has a B.S. in Legal Studies from Stevenson University, and is a current law student at Hofstra’s law school.