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Center for Ethics and the Rule of Law

 


COVID 19, Fourth Amendment • April 28, 2020

Would COVID-19 digital contact tracing programs violate the Fourth Amendment?

by Ashley Fuchs and Ryan Bender

 

Testing shortages and supply chain problems have complicated the Trump administration’s and state governors’ efforts to end shelter-in-place orders and reopen the economy. As the United States inches towards resuming normal life, one fact has become increasingly apparent: contact tracing must be a part of this nation’s response to COVID-19 prior to responsibly abandoning social distancing rules.

Contact tracing, along with testing, is widely seen as the best way to gradually end shelter-in-place orders; therefore, the system cannot be wholly reliant on an individual’s voluntary testimony and fallible memory. In an interview with NPR on April 9, 2020, CDC Director Robert Redfield underscored the need for comprehensive and “very aggressive” contact tracing. This aggressive contact tracing model implies a divergence from traditional practices in favor of digital and surveillance driven tactics. As reliance on digital technology replaces voluntary-interview models of contact tracing, this raises profound privacy and constitutional concerns. Would digital contact tracing programs necessary to combat the novel coronavirus violate the Fourth Amendment?

Why Does the United States Need Digital Contact Tracing Programs?

Contact tracing is the process of identifying and informing individuals who have come into contact with someone infected by the given pathogen. These contacts are then quarantined or monitored; if an individual tests positive, they are prompted to repeat this process, creating a recursive pattern that continues until transmission is controlled. Traditional voluntary-interview models of contact tracing put inordinate pressure on field investigators to interview infected individuals. The sheer volume of field investigators needed to account for the infected population renders this arcane model impracticable. Digital contact tracing has the potential to eliminate these problems by centralizing and expediting data collection as well as reducing reliance on trained public health personnel.

Successful implementation of such programs in South Korea, Singapore, other Southeast Asian countries, and Israel is both illuminating and vexing. The Singaporean government has encouraged citizens to install TraceTogether, a mobile application based on Bluetooth signaling. Similarly in South Korea, private developers have introduced Corona 100m, an application that uses data from public government sources to alert individuals when they are within a 100-meter radius of a diagnosed COVID-19 patient. Supplemental information such as the infected individual’s prior locations and identifiable characteristics are also disclosed. The Israeli government has implemented emergency measures that allow security agencies to track infected individuals’ mobile-phone data, enforce strict quarantines, and send text messages to the potentially exposed.

The United States is now taking steps to implement similar digital contact tracing programs. Google and Apple have announced the development of a joint contact tracing program that uses Bluetooth signaling to track coronavirus cases. An individual who tests positive for COVID-19 would notify public health officials through an app; alerts would then be sent to those who were potentially exposed in the proceeding two-week period. Despite the potential efficacy of these programs, their permissibility must be judged against the civil liberties that underpin American democracy.

Contact tracing has served as an essential public health intervention strategy throughout the twentieth and twenty-first centuries. In 1907, sanitary engineer George Sober investigated a typhoid outbreak in a wealthy family’s New York summer home. Sober identified peach ice cream as the likely transmitter and then used methodology similar to contact tracing to link the cook’s job history with known typhoid cases. Posterity would forever rechristen immigrant Mary Mallon as “Typhoid Mary.” Contact tracing was later utilized to control the spread of venereal diseases by American soldiers in the United Kingdom during World War II as well as to identify at-risk communities during the AIDs epidemic in 1980s Australia. In 2014, the Center for Disease Control (CDC) and the World Health Organization (WHO) deployed contact tracing in Ebola-infected regions of Western Africa. Such volunteer-interview models of contact tracing, however, cannot be implemented on a large enough scale to meet the United States’ current public health needs. As the number of confirmed COVID-19 cases approaches one million, present circumstances mandate a novel approach.

Given its importance, is a truly effective contact tracing program of the sort Dr. Redfield has in mind capable of being implemented in the United States? One potential obstacle would be the Fourth Amendment, which prohibits unreasonable searches and seizures—just the sort of searches contact tracing may require.

Would Digital Contact Tracing Programs Violate the Fourth Amendment?

Katz v United States defined an unreasonable search as when the government engages in warrantless surveillance of individuals under circumstances in which they have a “reasonable expectation of privacy.” The use of an eavesdropping device on a public pay phone violated that condition, as did a tracking device installed on a vehicle without a warrant. Digital contact tracing programs that permit the government to monitor activities where individuals have a “reasonable expectation of privacy” would constitute an unreasonable search under the Fourth Amendment. For example, it could violate the Fourth Amendment for health authorities to require individuals who test positive for COVID-19 to download a location-based app to track their movements. Yet realistically, there might be no other way to make contact tracing effective.

Katz-based limitations on digital contact tracing programs may be partially circumvented by the “third-party” doctrine. Individuals cannot claim a reasonable expectation of privacy for information they volunteered to a third party, such as a cell phone carrier, that the government subsequently acquired. The 2018 case Carpenter v United States, however, shows that this doctrine is in flux. The Supreme Court ruled that the doctrine does not apply to a week’s worth of cellular data the government obtained from a mobile provider. It is thus uncertain how new interpretations of the third-party doctrine will impact Fourth Amendment analysis of digital contact tracing programs.

Arguably, the Fourth Amendment issues could be avoided by making use of the so-called “special needs” doctrine, according to which a warrantless search that would not pass the Katz test would be permitted based on a special need relating to national security. When they are not conducted for a traditional law enforcement purpose, and circumstances make securing a warrant impracticable, the Supreme Court has ruled that warrantless searches may be permissible. The special needs doctrine, however, is highly controversial. In Ferguson v City of Charleston, for example, the Medical University of South Carolina subjected unwitting pregnant women to tests for cocaine use; those who tested positive were then charged with criminal child abuse. Although the women argued the tests constituted an unreasonable search, the District Court found that the searches were reasonable to serve a non-law enforcement end, namely mitigating prenatal cocaine exposure. The Supreme Court reversed the decision, however, noting that the special need in question cannot serve a law enforcement purpose. Because the women were threatened with criminal sanctions based on a non-consensual search, the special need could not justify the search. In the context of contact tracing, application of a special needs consideration would likely preclude any sort of criminal penalty. Therefore, a person could not face criminal sanctions for a quarantine violation based on information obtained through a non-consensual search.

Despite the uncertainty of future contact tracing initiatives and the corresponding nexus of legal considerations, Fourth Amendment and privacy concerns cannot be neglected. Director Redfield recently referred to these programs on NPR: “People are looking at all the different modern technology that could be brought to bear to make contact tracing more efficient and effective.” The ramifications of such comprehensive and aggressive tracking will extend well past the current global health crisis. ACLU surveillance and cybersecurity counsel Jennifer Granick aptly addressed these concerns: “These systems also can’t be effective if people don’t trust them. People will only trust these systems if they protect privacy, remain voluntary, and store data on an individual’s device, not a centralized repository.”

The COVID-19 pandemic has become one of the most deadly and economically disastrous events in modern history. Public officials face mounting pressures to forestall the spread of this disease and implement technological- and surveillance-based public health strategies. The urgency of this crisis is matched only by the legal complexity of its solutions. Officials must not forget that their decisions in combating the novel coronavirus will have serious public health implications as well as constitutional ones.

Ashley Fuchs is a political science and classical studies double major in the University of Pennsylvania’s College of Arts and Sciences as well as a Benjamin Franklin Scholar. She is a research assistant and volunteer for the Center for Ethics and the Rule of Law at Penn Law.

Ryan Bender is  an undergraduate in the College of Arts and Sciences at the University of Pennsylvania.