Digital Disease Surveillance

65 Pages Posted: 9 Oct 2020

Date Written: September 24, 2020

Abstract

Fighting the coronavirus pandemic will require 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 why disease surveillance will play a key role in responding to coronavirus and 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 teeth” 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 (September 24, 2020). 70 American University Law Review (2021 Forthcoming), 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

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
66
Abstract Views
354
rank
376,974
PlumX Metrics