Contact tracing helps epidemiologists identify individuals who have been exposed to a virus. Manual contact tracing has been used for decades to interrupt the transmission of disease and reduce the number of infections within a population. It is a pillar of disease control. But the manual process has certain limitations—it is time-intensive, expensive, and subject to human error. Digital contact tracing overcomes these limitations. Using GPS and Bluetooth technologies, digital contact tracing applications automate and expedite the tracing and notification processes, with life-saving implications. In 2020, countries that implemented contact tracing technology in response to COVID-19 contained outbreaks, minimized incidence of the virus, and kept death tolls comparatively low.
Notwithstanding the urgent public health need COVID-19 created, privacy-minded Americans were and continue to be resistant to digital contact tracing. Instead of widespread adoption of the technology, there is widespread concern that data collected via contact tracing apps will be co-opted, de-anonymized, and used by law enforcement for non-public health purposes.
Is this concern warranted? Can the government demand a record of your location data from Apple and Google without implicating your Fourth Amendment rights? Can it secure this data without a warrant or probable cause? The answer to all these questions is, most likely, yes. Although the Fourth Amendment limits the government’s search and seizure powers, Americans who opt to use contact tracing apps—for the sake of their health and the public health at large—position themselves outside the bounds of Fourth Amendment protections. In other words, Americans can choose health or privacy, but not both.
Surely, that should not be our norm. We need a new normal. This Comment, therefore, discusses how jurisprudence fails to protect the rights of U.S. citizens using contact tracing applications. It details the current Fourth Amendment tests and doctrines, including the Katz test (which centers around reasonable expectations of privacy) and the third-party doctrine (which says a person has no legitimate expectation of privacy in information supplied to third parties). Given the public health benefits of an effective contact tracing system, this Comment considers why changes to the Fourth Amendment framework—ones that accommodate the competing privacy and welfare needs of the twenty-first century—are warranted. Ultimately, this Comment proposes that the Supreme Court eliminate the Katz test and overturn the third-party doctrine to extend Fourth Amendment protections to information like location data captured by life-saving technologies.
Danielle J. Fong,
A New Normal: How COVID-19 and Digital Contact Tracing Highlight a Need for New Fourth Amendment Norms,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol71/iss3/5