Group complains of Kansas’ GPS monitoring: Coronavirus ‘does not justify warrantless data searches’

By Karen Kidd | Apr 7, 2020

TOPEKA, Kan. (Legal Newsline) – The Kansas Department of Health’s source for GPS tracking revealed a certain lack of social distancing in the state but also prompted “grave concerns” from a liberty-minded public interest firm.

“Kansas is using publicly available data as a tool to help monitor the spread of COVID-19 in our community,” Kansas Department of Health and Environment Public Affairs Senior Director Ashley Jones-Wisnerat told Legal Newsline.

The social distancing scoreboard tool is provided online by Unacast, which describes itself as a “trusted foundation for all location data-driven decisions” and maintains physical offices in New York and Oslo.

The admission caught the Kansas Justice Institute’s attention, with its general counsel Sam MacRoberts saying to the governor that the state health department’s communications director “did not identify the legal basis for the program or reveal when the program began.”

“It is also unclear who has access to the data, other than the KDHE, whether the program is temporary, and whether Kansas residents can opt-out,” MacRoberts said in a letter April 1 to Gov. Laura Kelly.

“Kansas Justice Institute has grave concerns regarding this tracking program. The wholesale collection of cellular and GPS data raises significant privacy issues.”

In a separate news release, MacRoberts said the institute “strongly urges” the governor “to make public the details of the tracking program as well as provide a thorough legal justification for this program that impacts the privacy of Kansas cell phone carriers.”

“The COVID-19 pandemic does not justify warrantless data searches of Kansas residents, and it certainly does not justify the lack of transparency,” the news release continued. “Although the Kansas Legislature has provided broad executive powers during emergencies, they are not absolute.”

On its website, Unacast says it is building a future in which human mobility data helps organizations “do well and do good.”

“From driving business strategies to tracking infectious diseases, we align to the goals of our clients for the shared benefit of our global community,” the company’s site says.

UnaCast’s social distancing scoreboard tool “is available for anyone in our community to see,” Jones-Wisnerat said in an email to Legal Newsline. “We began using this recently.”

In his letter, MacRoberts referred to a National Review report earlier the same day. The National Review reported that “the state health department is using a GPS program to track residents’ locations through their cell phones in a bid to slow coronavirus cases.”

The National Review cited as its source comments by state health department Secretary Lee Norman during a news conference earlier the same day.

“Kansas is the first state to publicly acknowledge its use of such a program,” the report said. “Norman said that the state was using a platform called Unacast, which compares anonymized GPS data from before and after the implementation of social-distancing measures to track the measures’ effectiveness and offer county-level grades. Norman said that 45 of Kansas’s 105 counties had received an F rating as of Wednesday, while the state’s overall grade sat at a C.”

Jones-Wisnerat, in her email to Legal Newsline, referred to the governor’s stay-at-home order issued March 28. The order, which then made Kansas the 22nd state in the U.S. to issue such a directive, went into effect March 30 and is expected to last at least until April 19.

“There are essential services and actions allowable under the stay-at-home order,” Jones-Wisnerat said. “The data, as indicated in their [Unacast’s] methodology section, takes that into account but looks for overall reduction.”