COVID-19, Contact Tracing, and Expectations about Privacy

Fourth Amendment Concerns

Impact on Expectations of Privacy

Contact tracing through smartassphone proximity detection proved to be of now use to anyone during the epidemic. Some societies made use of it, of which the US was never one. The UK wasted billions on it without ever achieving even a working system. The epidemiology of the disease and the overwhelming of tracing-based public health services showed that the whole thing was a technological illusion.

So why write about it now? Why spend all these words only to reach a conclusion as jejune as "clearly technological advancements have muddied the waters of numerous legal doctrines"? I think the best route to improvement is to figure out what the central idea is you want to discuss and to divorce it from a factual substrate that won't bear its weight. If this is really an essay about administrative search doctrine under the Fourth Amendment, the cases to be discussed are actually about junkyards, I think. But if it is about the effect on the epidemic on either the law about or the social expectations concerning privacy (a subject on which there is indeed much to be thought and written), contact tracing and the Fourth Amendment seem to me equally not very relevant.

Health or Privacy: A Necessary Tradeoff for Digital Contact Tracing of COVID-19?

-- By AbbyGraegin - 28 Feb 2024

Contact Tracing during the COVID-19 Pandemic

Many countries, including the United States, have implemented contact tracing apps in an attempt to contain the spread of COVID-19. Dessie Otachliska, The Constitutionality of Technology-Assisted Contact Tracing, Harvard Law School Bill of Health (December 29, 2020). Other methods of contract tracing have been around for decades—most simply, public health officials would interview individuals who have been infected to determine who they have been in contact with during the period of contagiousness. Danielle J. Fong, A New Normal: How COVID-19 and Digital Contact Tracing Highlight a Need for New Fourth Amendment Norms, 71 Emory L. J. 655, 658 (2022). Officials would then notify those contacts of their exposure to provide resources and sometimes recommend a quarantine. Id.

Manual contract tracing was not perfect though. Officials are people who make mistakes, and individuals do not always remember everyone they’ve come into contact with over a period of time. This technique also does not reach interactions with strangers. Digital contact tracing is new and attempts to solve these problems.

The application used in the United States, Exposure Notifications, was introduced jointly by Google and Apple. Betsy Ladyzhets, We investigated whether digital contact tracing actually worked in the US, MIT Technology Review (June 16, 2021). Google and Apple stressed two aspects of the app in anticipation of privacy concerns: first, the app used Bluetooth rather than GPS (meaning it only tracked which other users an individual was in close contact with over a period of time, not the individual’s location data), and, second, the app was opt-in. Fong at 659. The app likely would have been much more effective if it was more widely adopted, as exemplified by South Korea’s remarkably successful, government-mandated contact tracing app. Otachliska. However, rational concerns that this data was not protected by the Fourth Amendment significantly hurt opt-in rates.

Fourth Amendment Concerns

Fourth Amendment caselaw leaves the question of the protection of this contact tracing data unclear. Under the Katz test, the Fourth Amendment protects an individual’s information when that individual has “exhibited an actual (subjective) expectation of privacy” and “the expectation be one that society is prepared to recognize as ‘reasonable.’ Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). On one side of the argument, opting into a service like this that openly collects data could be seen as surrendering one’s expectation of privacy. How can one knowingly allow a third party to track their close contacts and expect that information to remain private at the same time? On the other side, Apple and Google’s reassurances about privacy may be seen to foster this expectation among users.

The most on-point precedent is a case about cell-site location data used by law enforcement to connect an individual to a series of robberies. Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018). There, the Court first established that a third party’s possession of the information does not sever its Fourth Amendment protection. Id. at 2217. “[A]n individual maintains a legitimate expectation of privacy in the record of his physical movements” whether the government obtains the information directly through its own surveillance or indirectly from a wireless carrier. Id. The Court based much of its reasoning on the nature of the technology. Because so many of our everyday functions are supported by cell phones, carrying one has become “indispensable to participation in modern society.” Id. at 2210. Further, a cell phone user’s cell-site location data is gathered constantly, without any action, any opt-in, from the user. Id. In contrast, as Apple and Google made explicit, Exposure Notifications was a completely voluntary service. Users would have to opt in before the app would gather their contact data. Unlike cell-site location data, contact tracing is not a necessary side effect of a nearly necessary personal possession.

Additionally, the special needs doctrine provides an exception to the requirement for a search warrant when the primary purpose of the search is not crime control. 68 Am. Jur. 2d Searches and Seizures § 117. This doctrine provides a three-factor test for determining whether a special needs search is reasonable: “(1) the nature of the privacy interest involved, (2) the character and degree of the governmental intrusion, and (3) the nature and immediacy of the government's needs and the efficacy of the program in addressing those needs.” Id. This doctrine may allow the government to access data collected through digital contact tracing, even if this information is found to be protected by the Fourth Amendment. The use of Bluetooth technology rather than GPS may actually be detrimental to users’ privacy interests under this doctrine—since no location data was collected through Exposure Notifications, the nature of the privacy interest and the degree of government intrusion would both likely be discounted.

A Necessary Tradeoff?

Unfortunately, it remains unclear whether a government attempt to access and utilize this data would be considered a search protected by the Fourth Amendment. Even if it is, the government may be able to argue successfully for application of the special needs doctrine. This is a problem. At the very least, individuals need some clarity. In order to feel secure, individuals need to have some expectations for what information is private and safe from government intrusion.

Clearly technological advancements have muddied the waters of numerous legal doctrines. Transparency is especially important in areas of privacy, now that more data than ever is being gathered. When the choice is between privacy and health, as it very well might be with the decision of whether to opt in to digital contact tracing, it is completely unacceptable that individuals do not know exactly what is at stake. As technology continues to develop and more and more data is gathered, the law must be clarified. Individuals need to know what they are up against.

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