Fourth Amendment

"Disease Surveillance and the Fourth Amendment"

An interesting and detailed analysis by Prof. Alan Rozenshtein at Lawfare.

|The Volokh Conspiracy |

Here's an excerpt, though you should read the whole thing:

Like governments around the world, the United States is struggling with the "coronavirus trilemma": It wants to protect lives, ease social isolation, and protect privacy and civil liberties, but it can do only two of those at the same time. In particular, and as South Korea's successful management of the coronavirus shows, extensive surveillance may be the only way to control the outbreak while preserving some degree of normalcy for economic and social life. I've argued that the longer the pandemic drags on, the more willing (and rightly so) people will be to trade in some of their privacy for the freedom to work and play. There is already significant support for location tracking among both policy experts and the general public, and we should expect this sentiment to increase.

A key issue will be determining what policy responses to the coronavirus can be squared with the requirements of the Constitution. Many constitutional provisions are implicated—for example, the Due Process Clause may restrict the government's ability to quarantine people suspected infection, the Commerce Clause (and its judicially crafted inverse, the Dormant Commerce Clause) bears on the question of division of power between the federal government and the states, and the open-ended nature of Article II raises questions about the president's inherent powers to act in the absence of congressional authorization. For now, I want to focus on the Fourth Amendment, which prohibits "unreasonable searches and seizures" and requires that warrants be supported by probable cause, and which will determine the outer bounds of permissible surveillance at the federal and state levels.

A word of warning: Any analysis is going to be highly tentative, for two reasons. First, Fourth Amendment analysis is highly sensitive to factual details about both the surveillance at issue and the broader context (for example, the severity of the pandemic). In the absence of concrete proposals, any analysis is going to necessarily be at a fairly high level. Second, the relevant Fourth Amendment doctrines—the third-party and special needs doctrines—are, even by the standards of constitutional law, in flux and without much coherence. Any predictions will thus be somewhat speculative.

I'll first give an overview of the relevant Fourth Amendment law and then apply it to three types of disease surveillance that are likely to be relevant in the near term: tracking the occurrence of coronavirus infection, contact tracing and quarantine enforcement….

Much of the legal difficulty, of course, indirectly stems from the text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Not all searches and seizures are banned, but just the "unreasonable" ones; and the warrant/probable cause provision doesn't mandate warrants or probable cause, but only requires that a warrant be based on probable cause. That leaves a vast amount open to interpretation (as of course is true for many other constitutional provisions as well), but even more guided than usual by a necessarily vague principle of reasonableness, because "unreasonable" is right there in the text.

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  1. “It wants to protect lives, ease social isolation, and protect privacy and civil liberties, but it can do only two of those at the same time.”

    I stopped there.

    1. Ben Franklin said something to the effect of those who are willing to sacrifice liberty for safety neither deserve nor will enjoy either.

      We are having fascism imposed upon us by fiat — and now being asked to accept more fascism as well. The “models” are now down to 60,000 deaths, 25% less than our annual Opiate overdoses, and about what we lose to the Flu each year.

      As an aside, Preventable Medical Accidents are believed to be the third leading cause of death, and four times more fatal than the worst projection of the Wuhan Virus — yet we are eliminating malpractice laws because of the virus “pandemic.”

      1. The preventable medical accidents story is semi-fraudulent, similar to blaming the corona virus for all deaths, when the victim would have been likely to die soon anyway; or blaming alcohol or pot or speed for any auto accident where such a factor was present.

        1. Another example of misleading statistics is those who claim the US has a higher infant mortality rate or higher dead birth rate than most other developed countries. More US infant deaths are from premature births than some other countries. Some countries don’t count a birth as live until the baby has survived a few days.

          UK (and possibly other countries) murder rates include only convictions. Find a body with multiple stab wounds or bullet holes, never arrest anybody, and it still does not count as murder. Arrest somebody who is acquitted, it is not murder.

          But to your bigger point, I agree, the number of coronavirus deaths does not justify the ruined economy and government expansion. However, far too many people will claim the lower-than-projected deaths are a result of big government and well worth the cost.

          1. “far too many people will claim the lower-than-projected deaths are a result of big government and well worth the cost.”

            We will never know, but the emphasis on handwashing has to have had an effect — we’ve known for centuries that it is effective, and that the best way to prevent transmission of other viri (e.g. Flu) is to break the hand to eye/nose/mouth route.

            Large volumes of hand sanitizer has gone *somewhere* — and as it’s denatured alcohol, I doubt it’s being drunk. Stores are having trouble keeping liquid hand soaps in stock, those are also going *somewhere* as well. And the masks are preventing people from putting their hands into their mouths/noses/eyes.

            Another thing I saw was anal/oral transmission of the virus in the latter days of an outbreak. China is notorious for leaking sewerage pipes and public defecation — so that’s quite likely. And handwashing also helps with this.

            Frequent handwashing — and that neither involved shutting down the economy of the fascist jackboot of authority to accomplish. All it took was the government (and others) pointing out the self-interest in doing this, and the effect of individuals acting in their own self-interests led to the good of all.

            Although I suspect that there are a lot of tin-horn despots who’d love to have the authority to be the potty police….

            1. According to the scientific literature, it would help reduce the transmission rate if the humidity in public buildings were raised to at least 50% — this is well-known to help for other RNA viruses such as influenza, SARS, and MERS. (And that would help reduce the influenza rate substantially at the same time!)

              One study showed that increasing in-school humidity from its “normal” 28% to an average of 48% reduced the influenza rate of the student body by a factor of 2.3 — and this in the absence of changing any potential infections from outside the school.

              CDC should be “following the science” on this…


              1. It’s almost as though initial studies may not be the same as the real science one should use to make policy.

                1. And before anyone tries, actual observed deaths are not the same as this kind of marginalia.

                  1. “And before anyone tries, actual observed deaths are not the same as this kind of marginalia.”

                    The data on the deaths is only what you select it as being.
                    A positive Wuhan Virus test ONLY means a positive test result.
                    NOT that it was even a contributing cause of death, let alone the cause of death.

                    Hence, observed deaths becomes irrelevant data.

                    1. That’s like saying that if someone dies in an auto accident and tests at a high Blood Alcohol Level, we don’t know for sure if alcohol caused the auto accident.

                      It’s true. We don’t. But we do know that in a high percentage of such cases, it will have been a contributing factor.

              2. ” it would help reduce the transmission rate if the humidity in public buildings were raised to at least 50%

                Yes, but you then would have your mold problems go through the roof and a “sick” building that no one can be in. And while most “black mold” is Stachybotrys, bad enough because something it produces harms human lungs, there’s also Aspergillus — more deadly than Anthrax — and it has the lovely habit of actually growing inside your lungs. And the problem with removing both lead and mercury from our paints is that both metals are toxic to mold and hence prevented them.

                Or at least that is what I was taught — and you try to get the moisture DOWN in buildings to prevent mold and the related “sick building syndrome” symptoms. Which are real.

                1. In a residential building, each occupant puts about seven pounds of water vapor into the air each day — mostly showering & cooking. If there are open windows or a combustion furnace (consuming air and requiring replacement air) then this isn’t that bad — but if you have either electric or external heat (i.e. from a steam plant), moisture often becomes a very serious problem if the building is well insulated.

                  If you don’t somehow get that moisture out of the building, you very soon have BIG problems…

                  1. Ooops…. “Consuming air” as in sending it up the chimney.
                    The oxygen is being consumed, but it’s only 5% of the air, nor is all of it being consumed as you want complete combustion. A lot of air is being exhausted from the building in the process.

        2. To some extent — but not entirely. My father died because a MD refused to recognize a rapidly elevating white blood cell count, even with it being explicitly being pointed out to him by a licensed RN (my mother). Medical protocol is to recognize this as a clear warning of cancer, which another MD *immediately* did when he went to her, but by then it was too late.

          Even if half the the medical error deaths are as you suggest, then the other half would STILL kill TWICE as many as the Wuhan Virus — and relaxing the controls on that will exacerbate this even further.

  2. _Camara v. Municipal Court_, 387 U.S. 523 (1967) comes to immediate mind — while that was a housing inspection, it was an inspector from the SF Health Department, so I’d argue a situation quite similar to this.

    Even though it was a “routine” inspection, SCOTUS said that you gotta go get a warrant — even with a landlord complaining of violations. And not mentioned in _Camera_ is what if the SFHD had asked a SWAT team (or the National Guard) to smash open the door and enter adverse to Camera’s wishes.

    Respectfully, Professor Volokh, I’d argue that _Camera_ defines both what is “reasonable” and what constitutes the necessity of having a warrant. As to “probable cause”, with the (presumably credible) landlord’s complaint, they had more of it than some vague belief that a person may or may not be ill.

    One other thing: I was taught to read the dissents *first* because it tells you what the dissenter was upset about, in clearer language than will often appear in the majority opinion.

    Justice Clark wrote, “Today, the Court renders this municipal experience [to inspect buildings], which dates back to Colonial days, for naught by overruling Frank v. Maryland and by striking down hundreds of city ordinances throughout the country and jeopardizing thereby the health, welfare, and safety of literally millions of people. But this is not all. It prostitutes the command of the Fourth Amendment…and sets up in the health and safety codes area inspection a newfangled ‘warrant’ system that is entirely foreign to Fourth Amendment standards.

    1. Note the emphasis that Justice Clark places on the “health” of “millions of people.” Same issue here….

  3. “These exceptions to the warrant requirement thus are unlikely to be sufficient for disease surveillance, which requires gathering ongoing data on a wide population (rather than individual by individual), of which few if any may have clear symptoms.”

    Not quite: disease surveillance can be done through testing, contact tracing, and quarantining of individuals who have it. That is, someone tests positive (because they have symptoms), then the CDC tracks down everyone they have come in contact with.

    Having come in contact with someone who has a contagious disease is likely to be found to be probable cause to have someone tested. Then surveillance only needs to be done on infected people who have the disease, until they test negative twice.

    Testing and contact tracing need not be done on a wide, indiscriminate population. It does however require widely available rapid testing capability, and that the disease is reduced to few enough people that we can do contact tracing.

  4. “and the warrant/probable cause provision doesn’t mandate warrants or probable cause, but only requires that a warrant be based on probable cause.”

    Riiight. You need probable cause to get a warrant, but who cares, because it doesn’t technically say you have to bother getting a warrant. So skip the warrant, and you don’t need the probable cause!

    And lawyers wonder why lay people have contempt for them.

    1. _Camera v. Municipal Court_?

    2. Warrants are the normal requirement for searches. However, various categories of searches are outside the warrant requirement, but still cannot be “unreasonable”.

      There’s nothing wrong with that interpretation of the Fourth Amendment language. It follows perfectly from the text.

  5. It’s very simple. Don’t introduce yet another dictatorship power because EMERGENCY!

    China will use it. Russia will use it. G. Gordon Liddy would have used it.

    Stop looking for reasons to build these things.

    “It won’t happen hear!” they squeak, seeing it happen around the world, with all human history giving zero weight to support their belief, and petatons of history against it.

    Rationalizations to help dictators build their bag of tools are against the US’ constitutional design principle.

    “Is there a way we can argue government should shut down everything? Can we somehow work hard and clever to justify and electronically order and track everyone’s location (for when Eye in the Sky isn’t enough)?”

    Step away from the Constitution.

    1. Damn couldn’t come up with a 3rd item for that list, violating Rule of 3. But here it is.

      Any guesses on the next dictator’s power? It’s a tiny, silly one of no import.

      “Can we suspend the elections?”

      1. Every once in a while, you get Cincinnatus as a dictator. Not often enough, but it does happen. Der Drumpfenfuhrer is not a Cincinnatus and shouldn’t have any power over anyone for any reason, in a fair universe, which this is not.

  6. Points for the Munchausian paradigm, but you can’t really deal with this area unless you roll up your sleeves and engage with the statutes, i.e., ECPA. 4A Privacy is about subjective expectations that society is prepared to accept as reasonable (Katz), and the statutory framework as ratified by the courts sets the framework for those expectations. Discussing 4A limits without the statutory framework is like discussing lemon, ginger, and rum without specifying whether you’re talking apertif, main course, or cake. The material of it is missing.

    I’d also quibble with locating the search under administrative searches. Granted, they’re done by administrators, but the archetype of that sort of thing is inventorying the contents of an impounded car. Where the government action imposes a subsequent duty to act responsibly in the course of business. This seems far afield — plus, it’s a warrant exception (if I remember correctly), so the balancing is not whether the needs justify the intrusion, but the considerably easier (for the gov’t) question of whether the bounds of the search exceeded administrative necessity.

    Top of the head, likely wrong, don’t rely. Mere procrastination on my part. Cheers.

    Mr. D.

  7. ” the United States is struggling with the ‘coronavirus trilemma’: It wants to protect lives, ease social isolation, and protect privacy and civil liberties, but it can do only two of those at the same time.”
    In theory, you can get all three if the people choose to do at least one of these thing independently of the government. In theory.

    1. I had never seen the word ‘trilemma” before. I love words like this–that are (a) obscure, (b) often enough useful to have in one’s vocabulary, and (c) immediately pretty clear as to their meaning.

  8. In other news, in addition to suits over gun shops & abortion clinics, there now is a suit over recreational marijuana shops being closed.

    1. We kept the shops open in California as “essential”.

  9. Stunning that the population has surrendered its liberties wholesale, unquestioningly, in service of fears which, while not unreasonable, appear to have been the subject of no small manipulations.

    Personal tracking is a current reality. The issue is whether we want to expand the state’s powers more than they already have been in service of those fears mentioned above.

    Not a good idea in my view.

  10. Under the common law, it was legal to use force, including deadly force to resist an unlawful arrest, even if there were a warrant provided that the warrant was invalid because an invalid warrant made the arrest unlawful.

    In the early 20th-century, the California courts reduced the level of force one could use to “reasonable” non-deadly force in the case of an unlawful arrest unless the police used (or attempted to use or threatened) deadly force.

    That was the law in California as late as 1957.

    Today, in California, it is “legal” for police to make unlawful arrests and to use force to make that unlawful arrest provided that they do not use “excessive force.” Today, If a police officer uses excessive force then the person being arrested may only use force “proportionate” to the excessive force. For example, if a police officer tries to strangle you then you get to bite and scratch his arms.

    What was once a level of force used by the police which justified the use of deadly force against the police, such as a police officer pointing a gun at someone or threatening to shoot/kill him, is no longer considered to be excessive force by the police.

    And so now we have come to this article’s non-defense of the Fourth Amendment, and the rights it encompassed before there was a Fourth Amendment and before it applied to the states.

    I suppose this is inevitable given 100 years of courts and legislatures poking holes in the Fourth Amendment and invalidating centuries-old common law rights regarding the right to use force, including deadly force, in response to unlawful searches, seizures, and arrests.

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