Part Ii: Response Issues Good Health and Good Privacy Go Hand-in-hand

PART II: RESPONSE ISSUES

Good Health and Good Privacy Go Hand-in-Hand

Jennifer Daskal*

I. HEALTH SURVEILLANCE: DEFINING THE CATEGORIES . . . . . . . . . . . . . . . . . 133

A. Aggregate Level Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

B. Individual Level Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

1. Contact-Tracing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

a. Government Monitoring. . . . . . . . . . . . . . . . . . . . . . 136

b. Contract Tracing Apps. . . . . . . . . . . . . . . . . . . . . . . 137

2. Quarantine Monitoring and Other Enforcement

Mechanisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

3. Screenings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

II. WHETHER TO COMPEL? .................................. 141

A. The Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

1. The Fourth Amendment—A Limited Constraint. . . . . . . . 142

2. Special Needs Searches . . . . . . . . . . . . . . . . . . . . . . . . . 145

a. The Tailoring Question . . . . . . . . . . . . . . . . . . . . . . 146

b. The Degree of Intrusion . . . . . . . . . . . . . . . . . . . . . . 147

3. Targeted Surveillance. . . . . . . . . . . . . . . . . . . . . . . . . . . 151

4. Voluntary Data Disclosure Regimes . . . . . . . . . . . . . . . . 151

III. THE POLICY CONSIDERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

In the United States, numerous pundits and commentators noted the similar-

ities between the 9/11 attacks and the health pandemic caused by COVID-19.

1

Both shook the nation, exposing deep vulnerabilities to external forces. Both

caused large numbers of casualties, albeit on different orders of magnitude.

2

And

* Professor and Faculty Director, American University, Washington College of Law. Special thanks

to Laura Denardis, Gene Fidell, Alex Joel, Matt Perault, Lindsay Wiley, and Alan Rozenshtein for

helpful conversations and input. A special thanks as well to my wonderful research assistant Daniel de

Zayas. © 2020, Jennifer Daskal.

1. See, e.g., Alex Joel, 9/11 All Over Again, JUST SECURITY (Apr. 10, 2020), https://perma.cc/VY29-

8YXS (suggesting how lessons learned from 9/11 could be applied in the response to COVID-19); Peter

Swire, Security, Privacy and the Coronavirus: Lessons from 9/11, LAWFARE (Mar. 24, 2020, 2:46 PM),

https://perma.cc/YD6Y-UYTV (same); Nick Paton Walsh, 9/11 Saw Much of Our Privacy Swept Aside.

Coronavirus Could End It Altogether, CNN (May 16, 2020, 1:27 PM), https://perma.cc/T4VM-MFFM

(quoting Edin Omanovic, Advocacy Director, Privacy International: “The surveillance industry ‘understands

that this is an opportunity comparable to 9/11 in terms of legitimizing and normalizing surveillance.’”).

2. Michael Finnegan, New York State’s Coronavirus Deaths Now More Than Double 9/11 Fatalities,

L.A. TIMES (Apr. 8, 2020), https://perma.cc/DH7D-NSXA (marking the point in time at which the

131

both resulted in signif‌icant restrictions on civil liberties, justif‌ied as needed to

protect the nation, including wide-ranging calls for a surge in surveillance to pro-

tect against would-be terrorists and pathogens, respectively.

But there was and is a key difference. After the 2001 attacks, the U.S. govern-

ment ramped up its tracking tools in order to identify and stop would-be terrorists,

much of which was done clandestinely. Even when the programs were disclosed

and, in some cases, transformed into congressionally-approved systems of sur-

veillance, key operational details, including the identities of those being tracked,

remained and remain secret.

3

The entire system depends, in large part, on non-

disclosure in order to be effective. It would, after all, largely defeat the purpose if

suspects knew how and when they were being tracked.

Health surveillance in response to a pandemic, however, has a very different

goal. The primary purpose is to educate and inform—to let people know where

there are large numbers of people congregating so that they can take steps to

avoid what might become the next disease hot spot; to tell individuals that they

have been in close contact with someone deemed contagious; to make visible and

transparent the need to test and self-quarantine; to let those subject to quarantine

orders know that their movements are being monitored in order to induce compli-

ance. The more transparent and open—or, depending on one’s perspective, the

more panopticon-like—the more effective.

4

This has led to a remarkable amount of clarity, as well as an open and robust

debate, about the kinds of surveillance employed or considered in support of bet-

ter health outcomes; how best to design the surveillance systems that are being

employed; whether, when, and in what cases use of surveillance systems should

number of COVID-19 deaths exceeded that of deaths from the 9/11 attacks). Since then, numbers of

COVID-19 deaths have continued to climb. JOHNS HOPKINS UNIVERSITY, COVID-19 UNITED STATES

CASES BY COUNTY, https://perma.cc/TLL3-CFHM.

3. Compare James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers without Courts, N.Y.

TIMES (Dec. 16, 2005), https://perma.cc/KLT6-CH3F (revealing the existence of the Terrorist

Surveillance Program authorized by President George W. Bush that, without FISA oversight, allowed

NSA interception of the content of international communications to or from the United States when a

communicant was suspected of being linked to al Qaeda or a related terrorist organization), with FISA

Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (amending the Foreign Intelligence

Surveillance Act of 1978 to, in essence, authorize the warrantless collection of foreigners’

communications, subject to programmatic approval by the Foreign Intelligence Surveillance Court).

Another example is that of the telephone metadata, revealed by the Snowden leaks, transformed under

the USA Freedom Act. Pub. L. No. 114-23, 129 Stat. 268 (2015) (codif‌ied at 50 U.S.C. §1861). Details,

however, of who was targeted under that program were classif‌ied. See generally David S. Kris, Trends

and Predictions in Foreign Intelligence Surveillance: The FAA and Beyond, 8 J. NAT’L SECURITY L. &

POL’Y 377 (2016) (providing a comprehensive charting of past and future sea changes in foreign

intelligence surveillance).

4. There are of course some exceptions to this. Secrecy can help support a goal of compliance with

mandatory quarantines, for example, in the wake of concerns about people bypassing or manipulating an

applicable surveillance scheme. And there remains a use for Intelligence community tracking of things

like extraterritorial disease spread—as was reportedly done by the Intelligence community in 2019, as it

tracked the disease spread in China, thereby providing an early warning system. See Josh Margolin &

James Gordon Meek, Intelligence Report Warned of Coronavirus Crisis as Early as November: Sources,

ABC NEWS (Apr. 8, 2020, 9:55 PM), https://perma.cc/4M5T-2LHD. In general, however, health

surveillance works via public engagement and public disclosure.

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