Potential Contact Tracing in Vermont And The Supreme Court Set To Hear Arguments By Phone For The First Time

Interviewer: We’re joined by Ben Barry. He’s a lawyer with Martin, Harding & Mazzotti, and he’s here to give us some insights on a couple of issues. Let’s start off talking about the spigot opening. Governor Phil Scott is talking about allowing the spigot to open a little bit, businesses opening up to customers, employees returning to work. There’s a lot of liability in that that I think people would be concerned about.

Ben: Yeah, you’re correct. And I think that the Vermont government is concerned with that as well. With respect to lawsuits emerging from the COVID-19 pandemic, I think the jury is still kind of out yet to determine whether or not employers would be responsible for worksite injury related to the virus, and other liability things when we’re talking about the government issuing some mandate or allowing government to start picking back up where they left off. It’s really unclear as to what kind of liability would be ascribed and whether or not there would be any causes of action. For example, for an employee working a cash register, working with an employee who has COVID-19 and wasn’t quarantined or taking precautions, and that employee, for example, requested and did not receive personal protection.

I think one of the more interesting things that I think is going to be a hotbed for legal issues is some of this talk about contact tracing, which Governor Scott has mentioned, and many other states are engaged in very elaborate plans to roll out programs that will contact people who have been in contact with someone who is showing signs of the virus. I think a lot of individuals, from a legal perspective, are concerned about the government’s attempt at implementing government oversight and tracking of people in some way, whether that be a telephone call, or some kind of electronic data mining, using cell phones, and things like that. So my own personal interest is really kinda focused on the contact tracing and how that all plays out, because that is one of the four prongs that Governor Scott laid out as being very important as we turn this spigot and allow commerce to continue the way that it was. One of the things that they’re going to implement is what seems to be a rather robust program for tracking individuals. And there has been a lot of pushback, in general, to other programs like the Patriot Act, for example, where the government is taking on this role of really tracking and monitoring people.

Interviewer: So Ben…

Ben: It will be very interesting to see what happens in that respect.

Interviewer: So Ben, the concern then is over privacy issues?

Ben: It is. I think, generally, most people are adverse to any government intrusion, really. And so the idea, I think for some people, is that if a government carries a stick, they’re gonna use it to beat up the citizens. Now the government is saying, “Look, we need this stick because the monitoring is going to be important to prevent the spread, and ultimately, taking away some of your privacy is going to serve a greater good. And that is protecting you so that you can do the things that you want to do. So giving up this little bit of privacy is, ultimately, going to serve this much wider, greater good.” I think people are concerned about that. They’re leery of that. There are a lot of people who are not really willing to give up information, and certainly, they’re not willing to not be allowed to actively consent to that. And I think that there are parallels here. There was talk in Iowa and some other political events where information geotracking was allowed at these events by third parties and people’s data was being taken. And a lot of people were upset with that. A lot of people were offended because, one, they didn’t consent to it, two, it was an information-mining event, and people don’t know what happens to their information, and there’s a marketplace for it. There’s a marketplace for information.

Interviewer: Ben, I’m in marketing, I have an agency of my own, and, believe me, I get this. Privacy always comes up as a concern, but it also comes up as a concern, and people don’t realize how much of their information is out there because they signed up for a deal, or they signed up and bought something online. That information is out there. We’re talking about public health, though, superseding some of that right, and being able to collect that information. And they can do that through third parties as well as those first-party interviews that the health department has talked about.

Ben: It’s absolutely correct. I think that some of this is really just a coming out of sorts about the information age in which we live. So from one perspective, the government is just actually taking on some of the work that has been done by these third parties who are doing it either with the consumer’s knowledge or without their knowledge. Now we’ve got the government doing it. That, I think, seems a little bit different to people in some respect, and also, government is very easy to point at. It’s much more difficult for citizens to point at some small LLC that was formed in Delaware who shows up with some kind of device that can pick up information from a cell phone. And, you know, when things get nasty, the LLC just kinda disappears and, you know, who knows where the data has gone. It’s run off into the information web. So I think the government is saying, “We are going to collect data,” is probably a very big, easy, I would say, “enemy” to point at and say, “You shouldn’t be doing this. And if you shouldn’t be doing it for the better good, neither should all of these other companies that are doing it for some other potentially nefarious reason.”

Interviewer: Well, there’s no doubt that when it comes to privacy and government, that raises people’s antennas and red flags. Hey, Ben, can you also talk to us for a little bit about the Supreme Court now, for the first time in its 230-year history, hearing arguments by telephone, what kind of challenges does that present?

Ben: Yeah, that’s a great topic. That’s probably something I’m more familiar with, the ongoings of the Supreme Court, which is really kind of, obviously, it’s the top court of our country. Oral arguments, generally, are a very insignificant portion of the entire process by which the Supreme Court hears a case. There are legal briefs that are submitted prior to attorneys going to the Supreme Court, which is an awe-inspiring event, I would think, in an attorney’s career. I’ve been to the Supreme Court. I haven’t argued there, but I did go as a tourist and it’s just an unbelievable building. Currently, the Supreme Court is hearing the May docket by teleconference. Never done that before. Many of the Supreme Court justices are over the age of 65, and so they are in a very vulnerable population. There’s actually only 3, Kagan, Gorsuch, and Kavanaugh, who are under the age of 65. But the oral arguments are scheduled to proceed in the same way or the similar format that they are generally conducted, which is there’s a court clerk brief at 9 a.m. for the 10 a.m. session, arguments are heard in two-minute intervals, petitioner and respondent. And then there’s one hour of time where the justices will be able to ask questions of the attorneys who are arguing their cases to resolve any sticky issues that the justices might have.

The Supreme Court usually is… There’s a little bit of back and forth between the justices, and attorneys will be able to feed on visual cues. Is Chief Justice Roberts grimacing? Is Justice Sotomayor smiling? What is going on? And there are a lot of visual cues that oral argument can be informed by. That is not going to be the case, and so it will be very interesting to see how this all plays out. There is also some information that’s shared between the justices themselves, and body language that attorneys can oftentimes capitalize on. That won’t be present either. The justices will be asking questions in order of rank or seniority. Justice Roberts goes first, Kavanaugh goes last, and the justices, based on the length of their time on the court, will go in descending order. So Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, and Kavanaugh will go in that order. It will be very interesting to see what happens. It will be very interesting to hear the audio of those arguments, which are all available online at the supremecourt.gov.

Interviewer: It sounds like you’re not in favor of this, much like you probably wouldn’t be in favor of doing the same thing in a poker game. You just…you gotta be able to see that body language in order to kinda know where you’re heading. But we really do appreciate your insight. Ben Barry, lawyer with Martin, Harding, & Mazzotti. Remember, you can always reach out to him at 1800law1010.com.