Constitution in Crisis: The Fourth Amendment and Combating COVID-19

Garret Stone

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In response to national emergencies, the federal government has previously implemented many policies in violation of constitutional guarantees to the private citizen. During World War II, Executive Order 9066 ordered approximately 117,000 Americans of Japanese ancestry living in California, Washington, and Oregon to be relocated and interned in remote military camps to combat potential espionage and sabotage.[1] In the wake of September 11, 2001, American military installations and the Central Intelligence Agency were permitted to torture suspected terrorists.[2] Undoubtedly, these policies constitute constitutional violations, but they were still accepted and even championed by the American public as necessary action.

The current COVID-19 pandemic presents new threats to private constitutional protections. In Griswold v. Connecticut, the Supreme Court found that the Fourth Amendment implicitly includes the right to individual privacy from government intrusion, derived from “penumbras and emanations” of the Bill of Rights.[3] The right to privacy has since been expanded to include robust protections for the private citizen.[4] Effectively minimizing the spread of coronavirus requires the federal and state governments to identify infected persons and track their location. Law enforcement agencies have access to sophisticated surveillance systems, including precise location tracking and facial recognition,[5] but state governments have taken little time to empower themselves to take full advantage of surveillance technology. For example, the New York legislature enacted emergency legislation granting Governor Andrew Cuomo unlimited authority to rule by executive order to combat COVID-19.[6] The federal government has recently contacted Google, Facebook, and other major tech companies about potentially using “aggregated location data” taken from Americans’ mobile phones for public health surveillance.[7] What may result is an unprecedented gathering of private information used to track citizens long after this pandemic has subsided.

Once surveillance of private individuals becomes unnecessary, will the government relinquish its hold on location information, or will tracking the public become the new status-quo? Historically, once the federal government has assumed new roles or powers, it is reluctant to roll back policy directives. The American Patriot Act passed during the Bush Administration’s aptly named “War on Terror” illustrates the staying power of emergency policies.  The Patriot Act gives sweeping search and surveillance powers to domestic and foreign intelligence agencies and eliminates the power of review previously reserved for the courts.[8] Although American escalation in the Middle East has been quelled, parts of the Patriot Act remain in effect, and the government’s national security surveillance powers remain significantly increased.[9]

It is unlikely that the government would ever willingly release the identities and locations of COVID-19 patients, but this information is still at risk of publication by nefarious entities.  Cyber warfare is rampant between the world’s leading powers. In 2008, the Pentagon’s security network was breached by a foreign espionage network.[10] Information relating to national security was compromised, and the breach is considered the most significant breach of U.S. military networks to date.[11] The cyber front is constantly evolving, and the government cannot ensure that the data it has collected to combat COVID-19 will remain confidential.

The United States is navigating uncharted waters. COVID-19 has upended the very fabric of American society and long-held notions of community. There is no doubt that health care surveillance is a necessary tool, but how this information may be used and how long emergency powers will last are topics of constitutional concern. Albert Cahn, the executive director of the Surveillance Technology Oversight Project, warned that this pandemic has the potential to “fundamentally change the scope of American civil rights.”  Short of evoking the fears of Orwell and the watchful eye of “Big Brother,” it is not outside the realm of possibility that location surveillance may be repurposed to further controversial political agendas, like anti-immigration policies. Only time will tell if the impact of COVID-19 will be lasting or fleeting on the private lives of American citizens. Until the sputum has settled, we can only wait and see.

[1] Japanese Internment Camps, History (Feb. 21, 2020), https://www.history.com/topics/world-war-ii/japanese-american-relocation.

[2] Carl Rosenberg, What the C.IA.’s Torture Program Looked Like to the Tortured, New York Times (Dec. 4 2019), https://www.nytimes.com/2019/12/04/us/politics/cia-torture-drawings.html.

[3] Griswold v. Connecticut, 381 U.S. 479, 483 (1964).

[4] See generally William M. Beany, The Constitutional Right to Privacy in the Supreme Court, 1962 Supreme Court Review 212 (1962) (tracking the evolution of the right to privacy).

[5] Natasha Singer & Choe Sang-Hun, As Coronavirus Surveillance Escalates, Personal Privacy Plummets, New York Times (Mar. 23, 2020), https://www.nytimes.com/2020/03/23/technology/coronavirus-surveillance-tracking-privacy.html.

[6] Id.

[7] Id.

[8] Jake Laperruque, What to Expect for the PATRIOT Act Reauthorization, POGO (Feb. 11, 2020), https://www.pogo.org/analysis/2020/02/what-to-expect-for-the-patriot-act-reauthorization/.

[9] Id.

[10] Secret U.S. Military Computers ‘cyber attacked’ in 2008, BBC News (Aug. 25, 2010), https://www.bbc.com/news/world-us-canada-11088658.

[11] Id.

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