AuthorKugler, Matthew B.

INTRODUCTION 910 I. FOURTH AMENDMENT SEARCHES IN THE PANDEMIC CONTEXT 913 A. Government Information Gathering and the Digital Revolution 914 B. Non-law enforcement searches under the Fourth Amendment 918 C. Reasonableness balancing in the Fourth Amendment 922 II. TWO EMPIRICAL STUDIES OF PANDEMIC SURVEILLANCE ATTITUDES 925 A. Popular attitudes toward COVID-19 Surveillance 928 B. Comparison of Law Enforcement Search Attitudes Over Time 935 C. Understanding Public Health Surveillance Attitudes 937 III. MAKING PANDEMIC SURVEILLANCE REASONABLE 941 A. How intrusive are pandemic searches? 941 B. Making pandemic surveillance reasonable 944 C. Safeguards and Public Trust 951 CONCLUSION 953 APPENDIX 954 INTRODUCTION

As the COVID-19 pandemic hit the United States in early 2020, Americans were inundated with media reports about novel forms of public health surveillance. Apple and Google formed a partnership to create a smartphone contact tracing application.' News sites began to create "mobility trend" reports that showed how much smartphone users were moving about, week to week, in different states and cities. (2) And media organizations produced sharable visuals showing how the cell phones of those gathered in particular locations at particular times, such as Florida beachgoers on a busy weekend, then dispersed across the nation. (3)

Alongside their infotainment value, these displays also showed the potential power of digital pandemic monitoring. Want to enforce a 14-day quarantine period for those entering your state? (4) You could troll social media for vacation photos, or you could monitor whose cell phones entered the state and then evaluate how much those phones moved once they arrived. You could also use this data for contact tracing by flagging phones that have been near those of a person who was discovered to be infected. (5)

This kind of surveillance was not uncommon overseas in the spring of 2020. Many other countries were using cell phone location data--sometimes GPS, sometimes Bluetooth--to track the movements of infected people and enforce quarantine orders. (6) Countries including China, Taiwan, Israel, and South Korea also used this data for contact tracing. (7) Though digital tracing has been used in the past, the scale of these efforts dwarfed anything previously seen. (8)

These overseas developments prompted considerable discussion about whether the U.S. Constitution permits mass digital pandemic surveillance, particularly through innovative use of cell phone location data. (9) Though the Fourth Amendment has been most discussed in the context of criminal investigations, the Amendment's protection against "unreasonable searches and seizures" applies to all government information gathering programs, not just criminal ones. (10) Both a public health contact tracing program and a law enforcement-directed quarantine enforcement program would have to comply with it.

As we explore in Part I, Fourth Amendment doctrine is unfortunately poorly developed outside the context of law enforcement investigations. When the government is engaged in information collection for "special needs" beyond "general crime control," the constitutionality of the program is assessed using a relatively free-form reasonableness balancing test." This analysis could easily be criticized as ill-defined, with each "special need" search domain being so individuated as to lack common principles. (12) As special needs cases span many different topics--from border searches to public schooling to government personnel management--there is indeed much variation. (13) Nevertheless, the cases continually emphasize some common factors: the distinctiveness of the person or relationship giving rise to the search, the intrusiveness of the search, the potential for arbitrary enforcement to lead to abuse, and the strength of the government's interest in conducting the search.

Because intrusiveness is a central part of the special needs analysis, in Part II we seek to quantify the intrusiveness of pandemic surveillance relative to the better understood category of law enforcement surveillance. This follows a tradition of Fourth Amendment scholarship that uses public opinion data to better understand privacy values. (14) Consistent with this scholarly approach, we conducted two studies with a total of almost 2,400 participants in the spring and summer of 2020--the height of the pandemic in the U.S.

The data from these studies show that people view surveillance aimed at controlling a health pandemic as even more intrusive than surveillance aimed at facilitating the traditional activities of law enforcement. For example, surveillance conducted by public health agents for contact tracing and by police to enforce a stay-at-home order are both considered more intrusive than traditional law enforcement monitoring. People felt this way during the height of the first wave of the pandemic in early April 2020, and they still felt this way after the United States had experienced over 100,000 deaths attributable to COVID-19 in June 2020. This surprising result-doubly shocking given the context of thousands of COVID deaths per day and an almost universal lockdown during the first round of data collection-should be taken seriously by public health officials and political leaders aiming to assess the privacy cost of mass pandemic surveillance.

In Part III we apply the results from these surveys to a Fourth Amendment reasonableness analysis to assess what kind of pandemic surveillance would be constitutionally acceptable. Though some technologies that are useful for pandemic surveillance fall outside of traditional Fourth Amendment protection, the most useful--cell phone location data--is generally covered. Because digital contact tracing by public health authorities likely falls within the special needs category, courts must balance the intrusiveness of the search versus the public benefit. Given the public's perception of the extreme intrusiveness of the searches, this article suggests that tight controls and safeguards are needed to make digital contact tracing reasonable. Absent those controls, such surveillance likely violates the Fourth Amendment and the constitutional right to information privacy. This article therefore proposes guidelines that would minimize the constitutional problems raised by pandemic surveillance, drawing inspiration from the regime for prescription drug tracking that the Supreme Court approved in Whalen v. Roe. (15)


    The Fourth Amendment requires that government searches be reasonable. (16) This means that when engaging in Fourth Amendment analysis, one first asks whether an act of government information collection constitutes a "search" and then, second, whether the search is a reasonable one. (17)

    Currently, Fourth Amendment law is deeply unsettled about whether precisely the kinds of surveillance most at issue in the COVID context constitute searches. (18) Specifically, the kinds of pandemic surveillance that have been considered include cell phone location data, surveillance video footage from cameras in public places, video from drones, facial recognition technology, and credit and utility records. (19) Entire papers have been written about whether using some of those sources of information would normally qualify as a "search" under normal conditions. (20) In Section LA, this article will briefly review the extent of that uncertainty. In Section LB, this article will examine the kinds of law enforcement searches that count as special needs searches. In Section I.C this article will turn to the role of intrusiveness in evaluating the reasonableness of non-law enforcement searches.


      Five of the seven scenarios used in Part IPs study of pandemic-related attitudes are fundamentally about companies' business records. (21) These include: cell phone location information, credit card information, and utility information. Of these, cell phone location information is by far the most important and most discussed in the pandemic context; it can directly track the movements of infected people and their contacts.

      Under the third-party doctrine, the Fourth Amendment has historically granted no protection for this type of consumer business record. (22) The government's acquisition of this information is not considered a "search" for Fourth Amendment purposes and therefore courts do not even reach the question of whether the acquisition is reasonable. (23) Essentially, the information is treated as non-private. The basic logic is that people have voluntarily chosen to share their customer information with the third-party company, and therefore have abandoned their privacy interest in it. (24)

      The shape of Fourth Amendment law has shifted substantially over the last 10 years, however. In United States v. Jones, (25) two concurring opinions by a total of five Justices suggested that the aggregation of many pieces of public location information by means of electronic tracking might give rise to a privacy expectation. (26) The Court went on to carve out a technologysensitive rule in Riley v. California, holding that the otherwise broadly permissive search incident-to-arrest doctrine did not allow for warrantless searches of cell phones, even though police could search other personal effects without a warrant. (27) Finally, the Court's response to the digital revolution reached the third-party doctrine in Carpenter v. United States. (28 )There, the Supreme Court held that the Fourth Amendment protection extends to law enforcement searches of historical cell-site location information stored by phone providers, exempting these data from the thirdparty doctrine. (29) Using cell phone location data for criminal investigations therefore required a warrant. (30)

      In Carpenter, Chief Justice Roberts noted two ways in which cell phone...

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