The Massachusetts Department of Health (DPH) has been accused of installing “spyware” on people’s devices without their knowledge to do COVID contact tracing, according to a civil liberties law firm. 

The New Civil Liberties Alliance (NCLA) filed a suit this week that accuses DPH of creating a COVID contact tracing app with Google that was then installed on resident’s phones without their knowledge. 

“These secret installations not only invade owners’ reasonable expectation of privacy, but they also intrude upon owners’ property right in their mobile devices by occupying valuable storage space,” the class-action lawsuit, entitled Wright v. Massachusetts Department of Public Health.

The lawsuit contends that the actions of the DPH during the pandemic were unconstitutional and showed a “brazen disregard for civil liberties.” It also claims that the app was installed “secretly” on the phones of over a million Bay State residents. 

Even if an individual did not opt into the tracking app, the lawsuit says that data and information about the user from the phone could still be accessed via Bluetooth. 

According to the NCLA, the app could only be accessed after going to the “settings” section of the phones and then going to “view all apps.” Peggy Little, a senior litigator for NCLA called the alleged actions of DPH akin to “dystopian science fiction.” 

“This ‘android attack,’ deliberately designed to override the constitutional and legal rights of citizens to be free from government intrusions upon their privacy without their consent, reads like dystopian science fiction — and must be swiftly invalidated by the court,” she said. 

The NCLA is representing two individuals, who frequent Massachusetts (one has a home and the other works in the state) who say the app was installed on their Android phones without their permission. They said they deleted the app after discovering its presence on their phones. 

The group contrasts the alleged actions of Massachusetts DPH with that of other states who rolled out a similar app, but let individuals opt in. 

“Many states and foreign countries have successfully deployed contact tracing apps by obtaining the consent of their citizens before downloading software onto their smartphones,” said NCLA counsel Sheng Li. “The government may not secretly install surveillance devices on your personal property without a warrant — even for a laudable purpose.”

In statement to the Boston Herald, DPH said it could not “comment on pending litigation.” The Daily Wire also reached out the department for comment. 

Jack Smith, appointed special counsel by Attorney General Merrick Garland on Friday, spent years as a prosecutor for the Department of Justice under former President Barack Obama and in the International Criminal Court at The Hague.

Garland named Smith special counsel to take over two DOJ investigations into former President Donald Trump, including parts of the investigation into the January 6, 2021, riot at the U.S. Capitol, as well as the investigation into documents seized from Trump’s residence in Mar-a-Lago. The move by Garland comes days after Trump announced his 2024 bid for U.S. president.

“Throughout his career, Jack Smith has built a reputation as an impartial and determined prosecutor who leads teams with energy and focus to follow the facts wherever they lead,” Garland said at a Friday press briefing. “As special counsel, he will exercise independent prosecutorial judgment to decide whether charges should be brought.”

Smith did not attend the briefing in Washington, D.C., that announced his appointment. The DOJ said he will return to the U.S. from the Netherlands after he recovers from a recent bicycle accident, according to The New York Times (NYT). Smith has already resigned from his role as chief prosecutor at The Hague, where he has worked since 2018 investigating war crimes.

Smith accepted the appointment in a statement: “I intend to conduct the assigned investigations, and any prosecutions that may result from them, independently and in the best traditions of the Department of Justice. The pace of the investigations will not pause or flag under my watch. I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”

Smith began work as a prosecutor in 1994 for the New York County District Attorney’s office investigating and prosecuting sex crimes and domestic violence offenses, according to the New York Post. He later moved to the U.S. attorney’s office for the Eastern District of New York and served in a number of supervisory roles, at one point overseeing the work of about 100 prosecutors.

In 2008, Smith left Brooklyn for the Netherlands to take on the role of investigation coordinator in the Office of the Prosecutor at the International Criminal Court in The Hague, NYT reported. He spent the next two years overseeing war crimes investigations into foreign governments and high-profile militia groups.

Smith returned to the United States in 2010 to take up a post at the Justice Department under former President Barack Obama. For the next five years, he led the DOJ Public Integrity Section and oversaw numerous corruption cases brought against politicians and others, including the high-profile cases of former Virginia Governor Robert McDonnell and former Arizona Rep. Rick Renzi, both Republicans.

Smith took over the Public Integrity Section at a period of turmoil for the division after a high-profile case against Republican then-Sen. Ted Stevens of Alaska broke down, according to NYT. After Smith took charge, the division dropped a number of cases against other lawmakers, raising questions that the division may shy away from pursuing cases against lawmakers.

“I understand why the question is asked,” Smith told The New York Times at the time. “But if I were the sort of person who could be cowed — ‘I know we should bring this case, I know the person did it, but we could lose, and that will look bad’ — I would find another line of work. I can’t imagine how someone who does what I do or has worked with me could think that.”

In the case against McDonnell, Smith’s team won initially — a jury convicted McDonnell on 11 corruption-related felony charges. The Supreme Court later overturned the conviction in a ruling rebuking the prosecution for its “boundless” interpretation of the law.

“There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute,” Chief Justice John Roberts wrote in a 2016 opinion. “A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”

In contrast to McDonnell, Smith’s prosecution of Renzi stuck. The former congressman was sentenced to three years in prison in October of 2013. Renzi later received a pardon from Trump in 2021 as he was preparing to vacate the White House for incoming President Joe Biden.

During his stint at the DOJ, Smith was linked to one of the most infamous scandals of the Obama administration: the IRS’s targeting of conservative groups. In the wake of the Supreme Court’s 2010 decision in Citizens United, the IRS unfairly scrutinized and delayed hundreds of conservative organizations’ applications for tax-exempt status from 2010-2012, according to a 2013 report from the U.S. Treasury Inspector General.

A congressional investigation into the affair uncovered that an official from the DOJ met with Lois Lerner, then-head of the Exempt Organizations Division at the IRS, in October of 2010. Days later, Lerner said in a discussion at the Sanford School of Public Policy that “everybody is screaming at us right now, fix it now before the election,” referring to Citizens United and the relaxed rules on corporate political funding.

In May of 2014, Richard Pilger, then the director of the DOJ’s Election Crimes Branch, told congressional investigators that the DOJ-Lerner meeting was set up at the behest of Smith to discuss campaign finance law. More specifically, Smith wanted to discuss the IRS being “more vigilant to the opportunities from more crime in the … 501(c)(4) area,” Pilger said according to Rep. Darrell Issa (R-CA), then chairman of the House Oversight and Government Reform Committee.

Republicans said the meeting was part of a pressure campaign on the IRS to target conservative groups in the wake of Citizens United. Both Pilger and Smith in meetings with lawmakers denied that any such pressure or influence was brought against Lerner over the Supreme Court ruling.

Smith left the DOJ in 2015, and from February of that year to August 2017, Smith worked as the First Assistant U.S. Attorney and Acting U.S. Attorney for the Middle District of Tennessee. Smith then served as vice president and head of litigation for the Hospital Corporation of America before taking a post at The Hague in 2018.