Digital Disease Surveillance

66 Pages Posted: 9 Oct 2020 Last revised: 25 May 2021

Date Written: May 21, 2021

Abstract

The fight against future pandemics will likely involve digital disease surveillance: the use of digital technology to enhance traditional public-health techniques like contact tracing, isolation, and quarantine. But legal scholarship on digital disease surveillance is still in its infancy. This Article fills that gap.

Part I explains the role that digital disease surveillance could have played in responding to coronavirus, and the role it likely will play in future infectious-disease outbreaks. Part II explains how the “special needs” exception to the Fourth Amendment’s warrant requirement permits almost any rationally designed disease surveillance program. Part III suggests safeguards beyond what Fourth Amendment doctrine currently requires that could protect rights without diminishing surveillance effectiveness, including: review for effectiveness and equality, procedural requirements, and periodic legislative authorization. Part IV proposes a mixed standard for judicial review: courts should require these safeguards under an evolving understanding of Fourth Amendment reasonableness while tempering their review with deference to the political branches. Part IV concludes by outlining how the doctrinal evolution spurred by digital disease surveillance programs—the development of a “special needs with bite” standard—might advance a key research agenda in criminal procedure: how to apply the Fourth Amendment to modern, data-driven surveillance regimes.

Keywords: coronavirus, COVID-19, constitutional law, health law, criminal procedure, surveillance, fourth amendment, contact tracing, administrative law

Suggested Citation

Rozenshtein, Alan Z., Digital Disease Surveillance (May 21, 2021). 70 American University Law Review 1511 (2021), Available at SSRN: https://ssrn.com/abstract=3698431 or http://dx.doi.org/10.2139/ssrn.3698431

Alan Z. Rozenshtein (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

HOME PAGE: http://www.law.umn.edu/profiles/alan-rozenshtein

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