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Now that the first wave of the coronavirus is behind us, what will the future bring? As governments reopen society following lengthy stay-at-home orders, they must strike a difficult balance. If the return to normalcy is too abrupt, infections could spike again in just a few months, creating a death toll as high as it might have been with no quarantine at all.1 An effective removal of quarantine orders, then, must ensure that the return to normalcy is appropriately paced. But how can we best plan to put our economy back together without jeopardizing public health?

Officials in New York state have echoed Italy’s call for a staged return to normalcy by first allowing only those testing positive for the virus’ antibodies (who presumably now are immune) to return to work and travel.2 Would creation of such a two-class society comport with constitutional dictates? In other words, can the government in effect create classes of citizenship based on the greater or lesser likelihood that some will catch the disease?

In Part I, we examine the growth of predictive policing, which similarly treats some individuals differently based on the likelihood that they will either commit or be the victim of a crime. If such surveillance does not lead to detention, incursion on the right to travel, or other loss of freedom, we believe such efforts to be constitutional, even though not always wise. Use of data to prioritize law enforcement efforts poses no insuperable constitutional obstacles. But deployment of predictive analytics can result in infringement on the right to liberty, as we relate. In Part II, therefore, we apply the lessons from the predictive policing context to assess current and potential expansion of public health surveillance in the midst of the pandemic. As with predictive policing, if the government focuses its data collection efforts on those most likely to contract the virus, no constitutional issue arises. But, if the government imposes a quarantine on those with the virus, a detention has occurred, and if the government then restricts the freedoms of those who are likeliest to catch the virus thereafter, then the rights to work and travel have been undermined. Courts then must balance the government’s public health interest against the constitutional infringement on the fundamental rights of work 3 and travel.4 Based on the limited precedents to date, the government must demonstrate that any two-track system is highly critical to protect the community and also provide those in the lower class some limited opportunity to challenge the government’s classification, which would leave them stripped of the right to travel and possibly their ability to pursue a livelihood. Given that the balance between governmental power and individual rights tips towards the government in times of crisis, we end in Part III by suggesting the constraints that the government should respect when casting such a wide surveillance net.

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