As the fight against the coronavirus pandemic continues, state governments are considering more invasive surveillance to determine who has been exposed to the virus and who is most likely to catch the virus in the future. Widespread efforts to test temperatures have been initiated; calls for contact tracing have increased; and plans have been revealed to allow only those testing positive for the virus’s antibodies (who presumably now are immune) to return to work and travel. Such fundamental liberties may now hinge on the mere probabilities that one may catch the disease or be immune from it.
To assess the privacy impact of such policies, we first 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. Although predictive policing has generated much social benefit, concluding that someone is likely to commit a crime should not justify either a stop and frisk or, worse, an increased sentence if a crime is in fact committed. We should be wary of depriving individuals of freedom solely on the statistical probability that they will commit a crime in the future. We then examine whether the increased public health surveillance that is likely to be launched can comport with our constitutionally-protected fundamental liberties. As with predictive policing, if the government focuses traditional data collection efforts on those most likely to contract the virus, no constitutional issue arises. But, if the government restricts the freedoms of those who may have been exposed to the virus, and if the government restricts the freedoms of those who are least likely to be immune thereafter, courts must balance the government’s public health interest against the constitutional infringement on the fundamental rights to work and travel. We argue that governments can only justify such actions based on a strong showing of public health necessity and must afford anyone subject to such serious restrictions 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 by suggesting the constraints that the government should respect when casting such a wide surveillance net.
Michael Gentithes, Harold J. Krent, Pandemic Surveillance - The New Predictive Policing, 12 ConLawNOW 57 (2020)