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Mass surveillance in the age of COVID-19
#MMPMID32728466
Ram N
; Gray D
J Law Biosci
2020[Jan]; 7
(1
): lsaa023
PMID32728466
show ga
Epidemiological surveillance programs such as digital contact tracing have been
touted as a silver bullet that will free the American public from the strictures
of social distancing, enabling a return to school, work, and socializing. This
Article assesses whether and under what circumstances the United States ought to
embrace such programs. Part I analyzes the constitutionality of programs like
digital contact tracing, arguing that the Fourth Amendment's protection against
unreasonable searches and seizures may well regulate the use of location data for
epidemiological purposes, but that the legislative and executive branches have
significant latitude to develop these programs within the broad constraints of
the ``special needs'' doctrine elaborated by the courts in parallel
circumstances. Part II cautions that the absence of a firm warrant requirement
for digital contact tracing should not serve as a green light for unregulated and
mass digital location tracking. In light of substantial risks to privacy, policy
makers must ask hard questions about efficacy and the comparative advantages of
location tracking versus more traditional means of controlling epidemic
contagions, take seriously threats to privacy, tailor programs parsimoniously,
establish clear metrics for determining success, and set clear plans for
decommissioning surveillance programs.
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