Computers, Privacy & the Constitution

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JalilMuhammadFirstPaper 3 - 12 Apr 2022 - Main.EbenMoglen
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4th Amendment Privacy Rights and Covid 19 Contact Tracing

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 I challenge proponent’s position on the constitutionality of contact tracing. Even during the height of the pandemic Americans never adjusted their reasonable expectations of privacy to support the establishment of a comprehensive government contact tracing program. Nothing illustrates this point more than the diversity in which state’s responded to everything from mask mandates to compulsory vaccine regulations. In fact, one could argue that the American people never truly seemed to arrive at a consensus around any shared response to the pandemic, much less a shared expectation of privacy as required by Katz. Moreover, I argue that the Court would likely render almost any effort by the federal government to use health data from third parties for contact tracing purposes, whether mandated or not, as unconstitutional. In Carpenter, the main concern of the Court was the immense amount of CSLI data acquired by law enforcement officers without the consent of mobile device users. Those same concerns would be implicated here because the scope of information derived from CSLI would be dwarfed by the scope of information derived from a comprehensive contact tracing program. In the absence of a participants expressed consent to be tracked or an emergency “so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment”, public health officials would be unable to justify the use of location tracking technology as an element of a contact tracing program because, as noted in Carpenter, historical cell phone location data is not covered by the third-party exception to the Fourth Amendment. No one reasonably denies the danger associated with the Covid virus, but whether it did or currently amounts to an emergency compelling enough to justify enhancing the powers of the surveillance state to further scrutinize the movement, health status and personal decisions of the American people remains to be substantiated. This time the federal, state, and local government apparatus failed to effectively coordinate a comprehensive contact tracing program like those employed by other countries to surveil Americans to mitigate the spread of the virus. However, that does not mean that political will and coordination efforts will fail in the future. Therefore, it’s important that privacy advocates remain vigilant because once privacy rights are handed over, history illustrates that they are rarely returned.
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This draft doesn't make sense to me. Where is the connection between the two parts of the subject? You don't show that access to public health data has been sought by law enforcement entities without warrant, or that suppression motions have been made in connection with searches of public health data, or that the question of public health investigation confidentiality has never been tested in relation to criminal process in the US, or that the legal approaches previously taken—about which you don't indeed present any information or cite any cases—are of changed relevance because this communicable disease is Covid rather than tuberculosis or syphilis.

In fact, technical contract tracing is now a fossil. It never took any hold in the US, and no one thinks broad-scale contract tracing is still useful with a pathogen as communicable as Sars-CoV-2. You might as well do contract tracing for influenza. Even South Korea has given up.

I think the way to improve the draft is to abolish all the general language about the epidemic The introduction should state clearly what the problem is you are learning about. If the subject is the constitutional limits on searching public health information compiled by government, then the law on that subject should be unearthed and presented in current context. What ideas that leads you too are then the purpose and conclusion of the next draft.

 

Revision 3r3 - 12 Apr 2022 - 13:06:16 - EbenMoglen
Revision 2r2 - 15 Mar 2022 - 20:52:19 - JalilMuhammad
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