Constitutional Pandemic Surveillance

Abstract

Non-law enforcement governmental information gathering – special needs searches in the Fourth Amendment parlance – must be “reasonable” to pass constitutional scrutiny. We review the case law on special needs searches to shed light on the contours of this reasonableness inquiry. Then, to aid in this analysis, we measure the perceived intrusiveness of pandemic surveillance through two nationally representative surveys of Americans conducted in the Spring of 2020, during the COVID-19 crisis. Our results show that, even at the height of an international pandemic, people find surveillance for public health purposes to be more intrusive than surveillance for traditional law enforcement purposes. To account for these strong privacy concerns, we propose safeguards that we believe would make cell phone location tracking and other similar digital monitoring regimes constitutionally reasonable.

Keywords: privacy, fourth amendment, COVID-19, pandemic, special needs searches, empirical legal studies