Digital Contact Tracing Against COVID-19

-- By MengYingLee - 10 Mar 2022 (revised 28 April 2022)

Introduction

During 2020, as COVID-19 has spread across the globe, several countries have employed digital surveillance tools (such as cell phone location data) to track and limit the virus’s transmission. Software developers like Apple and Google also launched a solution that includes application programming interfaces (APIs) and operating system-level technology to assist in enabling contact tracing. In the United States, several states signed on the software released by Apple and Google that will allow public health agencies around the world to build their own apps to track who may have been exposed to COVID-19 using bluetooth signals. In addition, Wall Street Journal reported in 2020 that the U.S. government have started to receive data analysis about the presence and movement of people in certain areas of geographic interest drawn from cellphone data provided by the mobile advertising industry.

Besides the contact tracing, quarantine surveillance is also another issue during the pandemic. Hawaii once considered sweeping use of GPS-enabled ankle bracelets or smartphone tracking apps to enforce stay-at-home orders given to arriving air passengers. A West Virginia judge has approved strapping ankle monitors to people who test positive but refuse to quarantine.

The Issue of “Consent” of Digital Contact Tracing

In the U.S., citizens can choose whether to download the tracing apps. When they choose to opt in by activating its use, it is voluntary sharing of information with the government. Nevertheless, when using contact tracing apps or activating the tracking functions, sometimes it may be an nuanced choice between opt-in or mandatory. For example, in August 2020, a group of Texas business owners, former state legislators, and organizations filed a suit in Texas, claiming the use of contact tracing to track the spread of COVID-19 violate their Fourth amendment rights . The plaintiffs contend that “smart phones are reportedly being reprogrammed to facilitate the unconsented tracking of Texans, compiling information in ways that invade the privacy of Plaintiffs and other Texans.” If the claim is true, the actual implementation of contact tracing program may not be that “voluntary.”

In addition, when the apps bundle different functions altogether (e.g., pandemic trend, local pandemic statistics, proximity detection, location tracking), it is sometimes hard for users to provide individual consent to different functionalities. Without valid consents, the legality of data collection remains questionable.

Digital Surveillance & U.S. Regulation

Contact tracing data collected by private entities would be provided to public health authorities. Some states have laws that require government entities to obtain a search warrant before accessing data on an electronic device (e.g, Electronic Communications Privacy Act). Nevertheless, unlike the European Union, the United States lacks a comprehensive and effective data privacy law. In fact, there is no law clearly regulates how that all data collected through tracing apps must be stored, used, and disposed of when no longer needed. Without such protections, it is risky that this data may be misused.

In 2020, the Washington Post revealed that a data broker company shared billions of phone location records with the District of Columbia government for coronavirus tracking. It obviously shows that during the pandemic, the data brokers are exploiting the situation to sell people’s private information to the government.

The Fourth Amendment protects against “unreasonable searches and seizures.” Though often applied in the criminal procedure context, in Ontario v. Quon, 560 U. S. 746, 755 (2010), the U.S. Supreme Court has recognized that “the Fourth Amendment's protection extends beyond the sphere of criminal investigations ”. In Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534 (1967), the court opined that “administrative search”, such as housing inspections, must comply with the Fourth Amendment .

Yes, and hence my point that no one is compelled to use tracking software. Your Texas paranoids may have some facts to prove, but I don't possess a smartphone, and until that's unlawful we can say that the absence of a constitutional level of consent is going to be hard to prove.

The law of administrative searches in the Supreme Court has changed somewhat since 1967. You need to look a little more comprehensively than Googling will do for you.

In Katz v. United States, 389 U.S. 347 (1967), court also recognized electronic surveillance as “search” under the Fourth Amendment. Therefore, it is possible that the digital contact tracing or surveillance be analyzed under the Fourth Amendment context, if the government requires mandatory reporting of cell site location information, or buying the data from brokers.

Those two factual settings are obviously nowhere near. How do you show that the latter raises any 4th Amendment question?

In 2018, the U.S. Supreme Court held that individuals have a reasonable expectation of privacy in their cell-site location information. In Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the court points out that “much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled…”, and “given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection.” An individual’s location history reveals much about who they are. Although in Carpenter v. United States, the court only addressed the issue of the CLSI tracking method, other means of location monitoring, such as GPS cell phone tracking or bluetooth-enabled tracing, also cause the same danger of privacy invasion mentioned in this case.

But, as I pointed out last draft, there would be time to argue about warrantless access to such information if there were any cases of warrantless access. There aren't any. Is the point of this essay to conclude without facts that there are no circumstances under which warrantless access would be constitutional? (Your purchase of data case is then relevant.) What validity is there to the argument against a straw man proclaiming that all warrantless access is constitutionally unproblematic?

Legal clarity, as I said last time, was the key to improvement. This draft gets about halfway there.

Furthermore, in Commonwealth v. Almonor, 120 N.E.3d 1183, 1195 (Mass. 2019), the court also acknowledged that “manipulating our phones for the purpose of identifying and tracking our personal location presents an even greater intrusion”, and therefore forbade warrantless access to real-time cellphone location data.

Therefore, if the government requires mandatory reporting of cell site location information, or buying the data from brokers, it is also within the Fourth Amendment’s ambit and the same protection shall also be applied.

Conclusion

In the name of dealing with COVID-19 pandemic, some countries already have required their citizens to download location-tracking apps onto their phones. These apps are used to surveil the general public, or even restrict their movements. History shows that when public emergencies arise, governments have the chances to expand their powers and people are more willing to accept it. We must make sure that all of the responses to the public emergencies are proportionate and necessary. The measures taken now may outlive the pandemic, and may have a significant impact on what the surveillance system would be even after the pandemic ends.

I don't understand the point of the Fourth Amendment analysis. No one in the US was required to use any such application, nor were there any criminal investigations or offenses involved. Use of information gained in the course of operating such applications for prosecutorial purposes without issuance of a warrant would raise a constitutional question, but there are no such cases to be found.

So improvement seems to me to depend on clearing up the legal confusion. What the subject should be once that's done I leave to you, though my comments on SophiaHanFirstPaper might also be relevant.

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