Matthew B. Kugler (Northwestern University - Pritzker School of Law) & Mariana Oliver (Northwestern University, Pritzker School of Law) have posted Constitutional Pandemic Surveillance on SSRN. Here is the abstracts:
How can government officials constitutionally use technologies like digital cell phone location tracking to contain the spread of a highly contagious pandemic? The Fourth Amendment case law on “special needs” searches shows that the answer depends on a reasonableness balancing analysis that considers, in part, the intrusiveness of the purposed surveillance methods and the degree of their connection to law enforcement activities. We analyze that case law and seek to inform the constitutional analysis by measuring the perceived intrusiveness of pandemic surveillance through two nationally representative surveys of Americans. Our results show that people find surveillance for public health to be more intrusive than surveillance for traditional law enforcement purposes. The strong privacy concerns expressed here must be weighed against the state’s interest in containing a pandemic. We therefore propose safeguards that we believe would make cell phone location tracking and other similar digital monitoring regimes constitutionally reasonable.Pand
