Unpacking Contact Tracing

By CHHS Extern Carly Yost

Public health jargon, previously only known by professionals in the field, is now a part of most people’s everyday vernacular. Due to the global pandemic caused by the emergence of COVID-19, contact tracing is among those previously unknown terms that are now a part of everyone’s daily lives. Several large cities across the United States have recently hired hundreds to thousands of new contact tracers in hopes to contain the spread of COVID-19 as restrictions on Stay-At-Home orders are lifted. At the same, Google and Apple released software that would allow cities to create contact tracing apps which residents would download on their phones. While the concept of contact tracing may be now well-known, the application is still lackluster. The responsibility of contact tracing for public health ultimately falls on local government, but both individuals and companies can play their own role in contact tracing and help fill the gaps where local jurisdictions are struggling.

In the past few months, many local health departments have gone from employing a handful of contact tracers to hundreds and thousands. During this pandemic, contact tracers reach out to everyone who tests positive for COVID-19 and find out contact information for anyone who they have come in contact with in the past 14 days. However, in New York City, of those who tested positive, less than 50% gave contact information for those these came into contact with in the 14 days before the positive test. Privacy concerns seem to be the United States’ general deficiency in contact tracing in comparison to other countries. For example, other countries have required people to write down their contact information when entering businesses or large gatherings, in order to have a reliable method to trace contact even with people unknown to the person who tested positive for COVID-19. Without these kinds of regulations in the United States, it will remain a difficult task for contact tracers to find any strangers an infectious person may have come into contact with.

Although cites in the U.S. have not implemented similar methods, some have encouraged individuals to keep their own log. Upon a new phase of reopening for the city, Baltimore City Health Commissioner, Dr. Letitia Dzirasa, advised individuals to “[keep] physical or digital note of places they visit and instances and times in which they were in close contact with others for a prolonged period of time. This means places where you’ve been closer than 6 feet to others for longer than 15 minutes.” This individual contact log will make the work of the 300 new contact tracers hired by Baltimore City much more timely and effective. While the CDC website does not contain any specific guidelines for individuals tracing their own contacts, it does state that contact tracing is the key to slowing the spread of COVID-19. According to the CDC, a contact tracer will ask everyone to list names of those for whom they have been within six feet for over 15 minutes during the time they may have been infectious, and it seems keeping a personal log can only help during this process.

Not only local governments and individuals, but also companies have a newfound interest in contact tracing as they hope to bring their workforce back into full operation. The basics being recommended by most health departments for businesses are temperature and health screenings, but businesses are certainly going beyond those measures to track employees’ movement once inside the building, through cell phone apps, VPN tracking on work-issued laptops, badges, or even light sensors. This of course brings up privacy concerns with an intersection of employment law, health law, and privacy law, with experts advising the best course of actions would be a vetted cell phone contact tracing app. With effective contact tracing, offices can be more assured that once they reopen, they will remain open and if one person gets sick, there is a lower probability that an outbreak occurs across the entire office.

Contact tracing may seem as though it is just a new buzzword, but the CDC, health departments, and other experts continue echoing its utmost importance during the COVID-19 pandemic. Now is the time when individuals should consider what part they can play in contact tracing, to assist with the local resources already in place. Maintaining a log of people you come into contact with for will aid contact tracers if you do test positive for the virus. Continuously following CDC guidelines will slow the spread of COVID-19, thereby making contact tracing more manageable. Additionally, as businesses begin to reopen, research and precautions should be taken to limit the spread of COVID which means effectively tracing contact while not violating privacy laws. Better Business Bureau Northwest and Pacific gave precautionary tips to employers hoping to utilize contact tracing, particularly to pay attention to how and where data is stored, who has access to collected data, and how much information is shared with employees. The resounding advice for employers shopping for contact tracing applications is to find one which does not permit the employer to access the data and keeps the data anonymous and preferably stored on the user’s device. The key is protect the individual’s right to privacy, especially concerning health data, while mitigating a “direct threat” to the health and safety of everyone in the workplace. As public health experts have long-known, contact tracing is now a societal responsibility and an operational necessity.

Maryland Should Lead States in Nursing Home Emergency Preparedness

As states begin their phased reopening across the country, the legal and policy decisions made by health officials and governors are bearing full fruit or consequences. Some states, such as Florida and Georgia, which resisted state closures and led reopening, are now facing choices similar to those faced a month ago, but with much higher stakes, as cases of Covid-19 rise and threaten to overwhelm healthcare systems.

The state of Maryland, which was one of the earlier states to see cases rise, has led by example. With Governor Hogan at the helm of a substantial team of medical and public health experts, closures in the state of Maryland were carefully timed, well-communicated, and followed the best medical and scientific knowledge available for a novel virus. Maryland citizens, for the most part, were exemplary in their willingness to engage in measures to make themselves, their family, their neighbors, and their community safe. This is the bright spot in this pandemic; Maryland and its residents have risen to the challenge of this pandemic, and each day there are more stories of everyday acts of heroism.

Where Maryland has mirrored the country at large, however, is one of the dark spots in the pandemic: the disproportionate effect Covid-19 has had on residents at long term care facilities (LTCFs). According to CMS data, as of June 14th,  over 40% of the approximately 115,000 Covid-19 related deaths in the US have occurred at LTCFs. Some of these deaths captured national headlines, such as outbreak at Life Care Center, in Kirkland, Washington, where 37 residents died, and dozens more residents and staff were sickened or exposed.

This story has played out across the country, and within Maryland’s borders as well. As of mid-June, nearly 60% of deaths in Maryland were at nursing home facilities. Sadly, this is not the first time nursing home deaths have made headlines: starting with the tragic consequences of Hurricane Katrina in 2005, the need for better emergency preparedness and planning in LTCFs has been a part of the national emergency preparedness discussion. In fact, in 2016, the Centers for Medicare and Medicaid announced a Final Rule for Emergency Preparedness Requirements, a sweeping, federal implementation of emergency preparedness requirements.

The rule, which requires LTCFs to have emergency plans, communication plans, and twice-yearly testing and exercises, had the ability to create a much-needed, federal-level culture shift within the LTCF industry. Unfortunately, its implementation was hampered by a new administration that announced almost immediately it would work to roll-back provisions of the rule, and approached enforcement in a lackadaisical manner. More fatally, the CMS EP rule, while quite thorough in its requirements, was not coupled with any federal grant funding to help facilities meet the new requirements—many of which, such as functional or full-scale exercises—can far exceed the cost estimates CMS provided.

As we have seen in other facets of the US, changing a culture, whether in a workplace or elsewhere, takes time, effort, education, and, importantly, funding. Nursing homes throughout the country are filled with workers who are trying to do the right thing, while constantly being asked to do more with less—less money, less time, less staff. During Covid, the workers in LTCFs have become surrogate family to residents who can no longer see their own families because of visitation restrictions; these workers have coordinated video calls for families, updated caregivers on the residents’ status, and sat beside patients, reading books to those who are ill, and holding the hands of those who are dying. What LTCFs lack is a well-funded, systemic push to make emergency preparedness an integrated part of the work culture, as natural to LTCF workers as compassion is.

During this pandemic, Maryland has led the country as a state responding to a public health emergency in a measured way, as it has done so many times before. During the West African Ebola outbreak in 2014, Maryland introduced science-based quarantine and isolation policies that protected public health while safe-guarding civil liberties. Where Maryland has learned hard lessons it has made changes to safeguard residents from future harm, such as requiring backup power for dialysis centers after residents were left without access to life-saving services.

Now, Maryland should pool its strength as a healthcare and public health leader to lead the nation’s change in culture for LTCF emergency preparedness. Working with LTCFs to review infectious disease protocols, ensure case reporting, and distributing testing kits—as Maryland has now done—is critical. But Covid-19 will end, and one of its enduring legacies should be that it brought about a revolution in LTCF’s emergency preparedness, creating a nation-wide culture of safety for medically-vulnerable residents and staff no matter what the threat. Meaningful implementation of the CMS Rule can help create that culture of safety, and ensure that whatever the next emergency is, Maryland’s LTCFs are ready.

Presidential Executive Order Attempts to End Social Media’s Liability Shield under Section 230 of the Communications Decency Act

By CHHS Extern Cheryl Gordon

Twitter, Facebook, Google.  These social media sites have become ubiquitous in American culture. While some use them more than others, we all use these social media sites for various purposes.  We keep in touch with friends and colleagues.  We meet new friends and network.  We suggest new activities and provide entertainment.  We express opinions and share ideas.

The President of the United States is no different.  The pervasive reach of Twitter made the social media giant President Trump’s preferred method of communication with supporters and with the American public.  Then, in May 2020, due to tweets from the President containing information which was questioned by Twitter and other organizations, Twitter announced it would begin fact checking the President’s tweets and adding fact checking labels to those tweets. Shortly after the announcement, Twitter added fact check labels to two of the President’s tweets: one regarding mail-in voter ballots and voter fraud and one regarding voter fraud in general.

As a result, on Thursday, May 28, 2020, President Trump signed an Executive Order (the “Order”) which aims to curtail social media’s ability to perpetuate freedom of speech on the Internet by scaling back these companies’ legal liability protections under Section 230 (“Section 230”) of the Communications Decency Act of 1996 (“CDA”).  President Trump prefaced the signing of the Order by stating that this Order was a major step towards defending free speech and reducing the influence of a small number of monopolistic technology companies.  The President justified his action by explaining that social media companies have not acted in good faith and have abused the protection provided by the liability shield under Section 230 when they “censor opinions” and retract speech with which the companies do not agree.

Although the CDA was originally drafted and passed to regulate online speech in the areas of online obscenity and child pornography, the CDA contains one of the most important sections in Internet law regarding the protection of freedom of expression and innovation on the Internet.  Section 230 of the CDA provides extensive protection to online companies by shielding them against liability for information or opinions posted by third parties on their sites.  This provision protects online computer services from efforts to hold companies liable for anything third parties say or do on their platforms.

Section 230’s protection against legal liability for the speech of others allows online innovations and Internet free speech to continue to thrive.  By allowing online computer service providers to not be treated as publishers of content and by shielding these companies from legal responsibility for the content posted on their sites by users, Section 230 promotes freedom of speech on the Internet and fuels Internet innovation and growth. Section 230 creates a safe haven for websites to provide controversial content and political speech.  And, it provides a legal environment that encourages free speech.

Online companies assert that Section 230 gives them the ability to empower people and organizations from a range of backgrounds and beliefs and gives these groups a voice and a platform to reach their audiences.  They maintain that if the Section 230 liability shield is diminished or eliminated, they will be encouraged to censor content on their sites.  This will harm online speech and threaten future freedom on the Internet.

However, according to the President, the actions of online companies under Section 230 protection are a threat to freedom.  President Trump argues that social media giants and technology companies abuse the protection provided under Section 230 through censoring and editing of communications posted on their sites by private citizens for public audiences’ review.  He states that the immunity enjoyed by online companies has lasted too long and should be curtailed.

The President’s Order addresses a number of issues ranging from the First Amendment and content censorship to restricting online federal advertising and initiating federal and state reviews of what the President deems online companies’ unfair or deceptive acts.  The first section of the Order discusses free speech and social media companies’ power to “…shape the interpretation of public events; to censor, delete, or disappear information; and to control what people see or do not see.” The Order specifically targets

“…among other troubling behaviors, online platforms ‘flagging’ content as inappropriate, even though it does not violate any stated terms of service; making unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints and deleting content and entire accounts with no warning, no rationale, and no recourse.”

The Order states that “[w]e must seek transparency and accountability from online platforms, and encourage standards and tools to protect and preserve the integrity and openness of American discourse and freedom of expression.”

Section 2 of the Order, Protections Against Online Censorship, reviews Section 230 of the CDA.  This section explains that the immunity from liability under Section 230 is one of the rules governing the debate for a free and open forum on the internet.   The Order states that

“[i]t is the policy of the United States that the scope of the immunity should be clarified:  the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”

According to the Order, Section 230 freedom from liability should be limited to apply to social media companies acting in “good faith” to eliminate content that is objectionable.  Section 230’s liability shield should not be available to online platforms which remove content “…to stifle viewpoints with which they disagree.”  When online platforms “censor” online speech, “…such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher that is not an online provider.”  Through the Order, the President requires all U.S. government departments and agencies to narrowly interpret Section 230 and the Department of Commerce to file a petition for rulemaking with the FCC requesting that the FCC clarify when the Section 230 liability shield applies to interactive computer services. Thus, while the Order addresses freedom of expression on the internet and the country’s history related to the First Amendment, the Order aims to redefine internet free speech by limiting or in certain instances eliminating social media companies’ immunity to liability for content posted on their sites by third parties.

In response to the Executive Order, the Center for Democracy & Technology (“CDT”) filed a complaint in D.C. federal court alleging that the Executive Order violates the First Amendment, attacks the free speech rights of U.S. citizens, and tries to chill constitutionally protected free speech rights of Americans. The CDT suit also alleges that the Executive branch does not have the authority to redefine or repeal Section 230.  In their view, the Administration is usurping the power of the Legislative and Judicial branches of government.

While the technology companies, the media and the American public await the determination  of the Courts, the FCC will review the Administration’s request for clarification regarding the circumstances when online companies can lose their liability shield under Section 230, leaving them liable for anything that users place on their sites.  Congress will enter into congressional inquiries.  And, the net effect may be a lot of drama with no change.

The FCC is not obligated to respond to the Trump administration’s request for rulemaking clarification or to enact new rules.  In order to effectuate any real change to Section 230, Congress must create a new law or amend Section 230 of the CDA.  Democrats and Republicans will have to put politics aside and come together to pass such a law.  Support of a bipartisan bill targeting Section 230 has broken down due to partisan politics.  The Republican agenda to end what they see as unfair bias against conservative users and websites and the Democratic agenda to stop, in their opinion, Republicans’ attempts to gain political advantage in an election year and to advance the Republican political agenda has driven the parties further apart with each party drafting its own reform bill.  The likelihood that the parties will agree upon a unified bill any time soon is unlikely.  Without a new law, the Executive Order has no real authority to end Section 230 protections.

NEW: Hotwash Episode 9 Available

Episode 9 of the CHHS podcast “Hotwash,” featuring CHHS Public Health Program Director Trudy Henson and Senior Law & Policy Analyst Christine Gentry is now available.

Teaser: This week on Episode 9 of Hotwash, Trudy and Christine talk vulnerable population planning, discuss why it’s important, and provide some best practices for our listeners

Check it out here or on our podcast page.

Hotwash Episode 9 Transcript


NEW: Hotwash Episode 8 Available

The eighth episode of the CHHS podcast “Hotwash,” featuring CHHS Public Health Program Director Trudy Henson and Senior Law & Policy Analyst Christine Gentry is now available.

Teaser: We’ve discussed the COVID-19 pandemic from the perspective of public health, behavioral health, and recovery, but we thought it would be interesting to look at it specifically through the lens of emergency management. We’re joined by Preeti Emrick, a former CHHS staffer, who is currently the Deputy Director of Anne Arundel County’s Office of Emergency Management.

Check it out here or on our podcast page.

Hotwash Episode 8 Transcript

NEW: Hotwash Episode 7 Available

The seventh episode of the CHHS podcast “Hotwash,” featuring CHHS Public Health Program Director Trudy Henson and Senior Law & Policy Analyst Christine Gentry is now available.

In this episode, Trudy and Christine talk to Lisa Crow, CHHS’ Recovery Planning Program Director. We’re very lucky to have Lisa on, because she is a nationally renowned recovery expert. She is a “forged in the fire” recovery expert: she coordinated Howard County, Maryland’s post-disaster recovery efforts following both the 2016 and 2018 Historic Ellicott City Floods, and she’s here to talk to us today about recovery planning in the time of COVID-19.

Check it out here or on our podcast page.

Hotwash Episode 7 Transcript

NEW: Hotwash Episode 6 Available

The sixth episode of the CHHS podcast “Hotwash,” featuring CHHS Public Health Program Director Trudy Henson and Senior Law & Policy Analyst Christine Gentry is now available.

In this episode, Trudy and Christine talk to Nicole Kulaga, Senior Law & Policy Analyst, who has worked extensively on planning for mental and behavioral health issues for disasters.

Check it out here or on our podcast page.

Hotwash Episode 6 Transcript

NEW: Hotwash Episode 5 Available

The fifth episode of the CHHS podcast “Hotwash,” featuring CHHS Public Health Program Director Trudy Henson and Senior Law & Policy Analyst Christine Gentry is now available.

We’re joined today by Hassan Sheikh, the senior pharmacy law and policy lead at CHHS. Hassan currently works in Baltimore City public health. We’re talking about the downstream impacts of COVID-19 on public health because we think that it’s possible the public has a limited perspective on all the public health work that’s continuing to be done during this time.

Check it out below, or check out our podcasts page.

Hotwash Episode 5 Transcript

NEW: Hotwash Episode 4 Available

The fourth episode of the CHHS podcast “Hotwash,” featuring CHHS Public Health Program Director Trudy Henson and Senior Law & Policy Analyst Christine Gentry is now available.

In this episode, Trudy and Christine switch it up a bit for a game show edition, where Megan Timmins, CHHS’ Associate Director, helps us learn Emergency Management and Public Health Preparedness terms.

Check it out below, or check out our podcasts page.

Hotwash Episode 4 Transcript

Washington Post Highlights Work of CHHS Staff Among Those “Working to Deliver Us from Desolation.”

The Washington Post profiled three CHHS staff members in an article about the individuals across the country working behind the scenes to light a path through the darkness of the COVID-19 pandemic. The piece highlights the work of:

  • Lisa Crow, Recovery Program Director
  • Maggie Davis, Senior Law and Policy Analyst
  • Netta Squires, Senior Law and Policy Analyst

The article focuses on the work these staff members have done to aid recovery and emergency management work in Montgomery County. The article also features former CHHS staff member, and current Montgomery County Office of Emergency Management staff member Tina Laboy.