Digital Contact Tracing Against COVID-19

-- By MengYingLee - 10 Mar 2022

Introduction

During 2020, as COVID-19 has spread across the globe, several countries like China, Israel, Singapore and South Korea have employed digital surveillance tools (such as drones, CCTV cameras, cell phone location data, video camera footage and credit card information) 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, Alabama, North Dakota and South Carolina are the first three U.S. states that sign 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. As COVID-19 spreading at an unprecedented rate, reliance on the traditional tracking model of voluntary interviews becomes impracticable. Digital contact tracing applications and techniques have emerged as a means to augment traditional manual contact tracing. The use of these techniques also expose conflict between data privacy and public health, raising constitutional concerns: Would digital contact tracing programs violate the Fourth Amendment?

Fourth Amendment in the Pandemic Context: Reasonable Expectation of Privacy

The Fourth Amendment protects people from unreasonable searches of places or seizures of persons or objects where that person has a “reasonable expectation of privacy”. In Katz v. United States, 389 U.S. 347 (1967), the United States Supreme Court developed a two-part test for determining whether a person has a “reasonable expectation of privacy”: (1) an individual has exhibited an actual (subjective) expectation of privacy; and (2) the expectation is one that society is prepared to recognize as reasonable. If both of these requirements are met, generally, the government may not search the person’s private space or seize the person’s belongings without a warrant. When applying the Katz test to digital contact tracing programs, the “third-party” doctrine may bypass the limitation. Under the third-party doctrine, when someone voluntarily surrenders information to a third party, he/she also forfeits any reasonable expectation of privacy in that information. Therefore, if the government obtain an individual’s contact tracing information from a cell phone carrier, there may be no violation of the Fourth Amendment based on the third-party doctrine. Nevertheless, in Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018), the court distinguish the cell-site location information (CSLI) from the data in the third-party line of cases, declining to extend the third-party doctrine to CSLI. In Carpenter v. United States, 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. Location history can show people’s interests, activities, political inclination, etc. 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 Carpenter v. United States. Therefore, it is also within the Fourth Amendment’s ambit and the same protection shall also be applied.

Fourth Amendment in the Pandemic Context: Special Needs Exception

The digital contact tracing and surveillance program is also likely to be evaluated under the Fourth Amendment’s “special needs exception.” The exception applies when: (1) the government conducts programmatic searches that are primarily aimed at advancing some special need other than criminal law enforcement; and (2) the government’s search program is reasonable given the balance of public and private interests. In the cases which the special needs exception is adopted, there seems to be distinguishing factors to decide what kind of people is surveilled, and such factors may legitimize the reduction of expectation of privacy. Nevertheless, the digital contact tracing and surveillance program applies to anyone who is or could become infected, which is, basically the general public.

In addition, the application of this exception seems to be disputable. In Ferguson v. City of Charleston, 532 U.S. 67 (2001), the court opined that “public health” can be a ground for justifying “special needs” searches, but if the real purpose of a drug testing program is to advance law enforcement goals, the special needs exception does not apply.

Even if government could prove that the special need exception applies, courts still have to balance the intrusiveness of the surveillance versus the public benefit. This should be a “context-specific” investigation. The surveillance is, undoubtedly, highly intrusive. Therefore, the government has to explain how such intrusion is justified by greater public benefit.

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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