4th Amendment Privacy Rights and Covid 19 Contact Tracing

-- By JalilMuhammad - 14 Mar 2022

Since the start of the Covid 19 pandemic in the early spring of 2019, over one million people have died from the coronavirus. The disease has permeated every element of our society and government response to it has challenged traditional views of the fourth amendment. Although, governments around the world have employed a variety of techniques to counter the spread of the virus, no mechanism employed by local and state government has been scrutinized by privacy advocates more than mobile phone-based contact tracing and for many, the unprecedented use of digital contact tracing technology implicates serious 4th amendment violation concerns.

The Supreme Court has determined that every individual has a reasonable expectation of privacy and that the constitution protects them as long as their individual expectation of privacy remains consistent with what society would consider reasonable. In Katz, the Court noted that the protection of the 4th amendment transcended the physical space of an individual to follow the individual regardless of where they were. The Court stated, “the Fourth Amendment protects people and not simply ‘areas’-against unreasonable searches and seizures… [and] that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.”

In Jones, the Court examined the 4th amendment implication of law enforcement’s use of GPS technology when attached to a suspect’s vehicle for tracking purposes. The Court noted that despite the GPS tracking only occurring during the time in which the suspect travelled on public roads, the act of surveillance was a violation of the 4th Amendment because it infringed on the individual’s reasonable expectations of privacy. Moreover, the Court determined that the initial attachment of the device to the suspects vehicle within his driveway “encroached on a protected area” and indeed “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Finally, in Carpenter, the Court examined the unique challenges cell site location information technology pose to the protection of the 4th amendment. The Court noted that the “tracking a person’s past movements through Cell-Site Location Information (CSLI) partakes of many of the qualities of GPS monitoring considered in Jones_—it is detailed, encyclopedic, and effortlessly compiled.” However, the Court acknowledged that CSLI went beyond GPS monitoring technology because it revealed an individual’s past location information to wireless service providers on a continuous basis. The Court noted that the government was prohibited from acquiring CLSI data from “third parties” without a warrant, stating “Whether the Government employs its own surveillance technology as in _Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”

Proponents of contact tracing argue that while general privacy concerns might be implicated, the Court’s rulings would insulate the practice against a claim of unconstitutionality because the pandemic has reduced the publics expectations of privacy. As a result, they reason, that a government surveillance program, like contact tracing, would be consistent with precedent because an individual’s reasonable expectation of privacy does not outweigh the public’s the public health benefits of contact tracing. Moreover, proponents would argue that even if the Court found that an individual’s reasonable expectation of privacy was violated, the constitutionality of the program would still be upheld if the government’s contact tracing program relied on data mobile users voluntarily provided to third parties. Proponents would argue that health data procured from third parties for public health purposes is distinguished from data procured from Cell-Site Location Information because the former is the least intrusive option available within the context of a global pandemic, is being conducted on an emergency basis only, and will only be used temporarily.

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.