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Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: South Korea is fighting the pandemic through extensive surveillance of

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Speaker 1: its citizens credit card transactions, cell phone data, and surveillance

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Speaker 1: camera footage. Should the US allow this massive intrusion into

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Speaker 1: our privacy to stem the pandemic? Joining me is Harold Crant,

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Speaker 1: professor at the Chicago Kent College of Law. So, Harold,

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Speaker 1: you have this great public health concern versus privacy concerns.

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Speaker 1: How do you balance that in this country? It's impossible

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Speaker 1: to balance them well. And we saw that in the

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Speaker 1: wake of nine eleven. And I view this as a

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Speaker 1: kind of spectrum that there's are a pendulum that we

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Speaker 1: have more privacy in times of peace, we have less

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Speaker 1: privacy in times of war, and certainly this we have

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Speaker 1: a war against the pandemic. Right now remains to be

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Speaker 1: seen what will happen in this country, but there has

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Speaker 1: been some success with I think I could say two

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Speaker 1: different types of surveillance mechanisms in other countries such as Israel,

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Speaker 1: South Korea, and Singapore. And of course China is a

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Speaker 1: leader of all this as well. And just to set

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Speaker 1: the stage briefly, the technologies can be used first to

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Speaker 1: detect people who are at risk of catching the virus.

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Speaker 1: If you take someone who is caught the virus and

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Speaker 1: you look at their credit card data, if you look

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Speaker 1: at their cell phone location data, one can easily create

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Speaker 1: a web of contacts and alert people that may they

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Speaker 1: may have been exposed. And indeed, you could take a

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Speaker 1: step further, as some countries have and impose a mandatory

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Speaker 1: quarantine on those people who may have received the virus.

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Speaker 1: So that's the first sort of set of tools that

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Speaker 1: have been used. The second set of tools that have

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Speaker 1: been used are to enforce a quarantine. Right now, we

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Speaker 1: have sheltering place in in large parts of this country,

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Speaker 1: but no one really knows whether those rules are being

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Speaker 1: abided by. You can create a mandatory app on a

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Speaker 1: cell phone that detects when people leave their quarantine. You

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Speaker 1: can use location data to to ensure that they're there,

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Speaker 1: and you can back that up with some kind of

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Speaker 1: surveillance cameras, facial recognition through AI and so forth. So

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Speaker 1: technology does have a lot of promise both to detect

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Speaker 1: people who may be exposed to the virus um but

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Speaker 1: also to enforce quarantines. If we have to. But the

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Speaker 1: question is is you posed in the beginning should we?

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Speaker 1: Is this sort of foretel a kind of defeat of

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Speaker 1: privacy in the long run those measures that you mentioned,

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Speaker 1: for example, making sure that people are staying in if

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Speaker 1: they're quarantined. And in China, I know that they're acquiring

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Speaker 1: people to have software on their phones that classifies each

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Speaker 1: person with a color depending on their exposure to the virus.

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Speaker 1: But this not only sounds like big Brother, it starts

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Speaker 1: to sound should I say on American to start tracking

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Speaker 1: movements to that extent, and you've mentioned about China's is

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Speaker 1: sort of the the the height of AI and predictive analytics.

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Speaker 1: They look at a basic sort of set of of

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Speaker 1: factors such as who you've been contacted with, what is

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Speaker 1: your health, etcetera, etcetera, to forecast what kind of danger

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Speaker 1: you are of contracting the virus in the future. And

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Speaker 1: based on those predictive analytics, you are as signed a

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Speaker 1: color and the color allows you either some access to

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Speaker 1: some government buildings or not, access to restaurants or not

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Speaker 1: um And that really is very frightening because our liberties

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Speaker 1: then are being conditioned based upon an algorithm, and an

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Speaker 1: algorithm that may actually be faulty more times than not.

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Speaker 1: Can the public do anything to stop high tech intrusions

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Speaker 1: into their civil liberties? Well, I think that the first

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Speaker 1: question is we do have our constitution protections. We do

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Speaker 1: have statutory protections such as hip or health information in

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Speaker 1: this country, and any kind of measure that, for instance,

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Speaker 1: would intrude upon or pass on our secret health information,

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Speaker 1: such as the fact that we had the virus, would

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Speaker 1: be now subject to HIPPA. So Congress would have to

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Speaker 1: debate this and decide to suspend HIPPA for the for

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Speaker 1: the period of this pandemic um And so we'll have

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Speaker 1: at least some ventilation, so to use that word, all

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Speaker 1: the issues now, and the Fourth Amendment does protect, according

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Speaker 1: to the Supreme Court, at least the location data of

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Speaker 1: our phones, So right now we have some protection from that.

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Speaker 1: But of course, if Congress passed the statute saying in

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Speaker 1: a limited emergency, we should have the ability to track

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Speaker 1: self one data so we can get a better sense

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Speaker 1: of the spread of the virus and then stop it,

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Speaker 1: that might be a sufficient governmental interest to override the

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Speaker 1: privacy interests at stake if we do that. The one

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Speaker 1: thing that I would urge if I were a legislator,

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Speaker 1: is to put in the bill protections for the long term.

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Speaker 1: And I have in mind I think three though of

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Speaker 1: other people may have others that they would suggest, like

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Speaker 1: we had with the Patriot Act about twenty years ago.

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Speaker 1: Any kind of bill that it collects that information should

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Speaker 1: be only valid for a short period of time and

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Speaker 1: then would have to reenact it within a matter of

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Speaker 1: a year or two. That's one protection. I think the

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Speaker 1: data of the week we would collect, because it is

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Speaker 1: such sense of data should be destroyed after a certain

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Speaker 1: amount of time. UM. So that the fear is, once

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Speaker 1: you have this data, you can massage it for so

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Speaker 1: many purposes. And you know, you can think about undocumented

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Speaker 1: citizens and sorry, documented individuals in this country UM, who

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Speaker 1: would not want to be tracked UM, and many other

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Speaker 1: groups that might be politically adverse to the current government.

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Speaker 1: So I think that the data might be used carefully

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Speaker 1: for to help our fight against the pandemic. But if

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Speaker 1: Congress does this debate, UM, I I hope that they

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Speaker 1: bake into WA the prevision provisions that they an act

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Speaker 1: real protections to make sure this doesn't carry forward into

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Speaker 1: a long term erosion of our civil liberties. When you

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Speaker 1: look at one instance, New York has passed a law

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Speaker 1: giving the governor unlimited authority to rule by executive order

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Speaker 1: during a crisis. Now, any litigation about these laws are

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Speaker 1: passed by states or Congress would take longer to get

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Speaker 1: through the courts, possibly than the pandemic itself. So then

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Speaker 1: that may be true. And and we don't know, I

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Speaker 1: mean still obviously the governor's ability to rule by executive

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Speaker 1: order doesn't eliminate our civil liberties, and we do have constructs,

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Speaker 1: but as a practical matter, it's difficult to get this

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Speaker 1: litigation UM resolved within a quick amount of time. It's

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Speaker 1: particularly given the courts are somewhat paralyzed. UM. So we

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Speaker 1: do have a risky situation here, and you can see

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Speaker 1: that by looking what's happened in Israel and Singapore, UM

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Speaker 1: and Hong Kong, where their vigorous civil liberties debates going

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Speaker 1: on right there now. Because of those surveillance activities taken

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Speaker 1: by the government, even if it's some good faith, they

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Speaker 1: can make mistakes. They can lead to sort of sort

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Speaker 1: of case by case errors UM. As well as this

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Speaker 1: massive trolls of information that could be used in the

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Speaker 1: future for nefarious purposes. And then if you start with this,

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Speaker 1: do you then risk opening the door to even more

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Speaker 1: kinds of surveillance in the future post pandemic sort of

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Speaker 1: like what happened, We become used to government surveillance. Uh,

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Speaker 1: then we become less worried about it. And I think

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Speaker 1: that's been true too, because the private sector has so

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Speaker 1: much information about us. Right if you think about what Google, Amazon,

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Speaker 1: and Facebook knows about us, we become sort of a

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Speaker 1: nerd to the loss of privacy. And so some people

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Speaker 1: may say, look, there is no privacy anymore, they might

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Speaker 1: as well let the government use it to maybe they'll

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Speaker 1: do something better with it than Amazon, Rule and Facebook

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Speaker 1: are doing. Right now, are there any indications that the

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Speaker 1: Trump administration is considering any of these surveillance matters. My

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Speaker 1: understanding is that the CDC is now embarking upon a

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Speaker 1: study of what kind of surveillance activities they can use

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Speaker 1: in the States. Obviously, it's a little late here, so

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Speaker 1: much of its spread already so that it's it can't

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Speaker 1: be used as effectively as it has been in other countries.

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Speaker 1: But there are still some parts of this country where

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Speaker 1: that kind of surveillance activities can be used quite effectively,

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Speaker 1: and I know that they are looking at what other

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Speaker 1: countries have done, but there have no are no concrete

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Speaker 1: proposals today. I'd expect one within probably a couple of days.

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Speaker 1: There's also the problem withouting of coronavirus patients and instances

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Speaker 1: of outing so that people know you're your health they

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Speaker 1: know your health data. In one instance, at the very

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Speaker 1: beginning of the outbreak in New York, New York City

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Speaker 1: Mayor Build de Blasio posted details about the second person

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Speaker 1: in New York to test positive for the virus, and

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Speaker 1: the man was identified quickly as patient zero. And apparently

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Speaker 1: there's a lot of that kind of outing going on

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Speaker 1: in different countries. And Singapore they're posting information online about

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Speaker 1: each coronavirus patient, and I think in South Korea as well,

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Speaker 1: So that's another problem. Yeah, the whole idea of confidentiality

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Speaker 1: and health of information is a long important part of

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Speaker 1: our culture. And we saw this with AIDS people who

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Speaker 1: have contracted age about twenty years ago, and how awful

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Speaker 1: it was if those names were posted in the public. Indeed,

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Speaker 1: some people followed the government did that that would result

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Speaker 1: in a due process violation. We're seeing that now We

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Speaker 1: saw that with the Blasio in New York, We've seen

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Speaker 1: in other countries, and I do hope that at the minimum,

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Speaker 1: even if this surveillance takes place, it takes place with

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Speaker 1: a recognition that we can ensure some kind of privacy

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Speaker 1: for those who are afflicted in their families as well.

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Speaker 1: Thanks so much, Harold. That's Harold crant the professor at

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Speaker 1: the Chicago Kent College of Law. Thanks for listening to

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Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to

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Speaker 1: the show on Apple Podcasts, SoundCloud, and on Bloomberg dot

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Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg