70 Am. U. L. Rev. 1511 (2021).
* Associate Professor of Law, University of Minnesota Law School. For helpful comments I thank Marc Blitz, Hannah Bloch-Wehba, Kiel Brennan-Marquez, Ryan Calo, Glenn Cohen, Aaron Cooper, Rebecca Crootof, Jen Daskal, Jolynn Dellinger, Scott Dewey, Mailyn Fidler, Richard Frase, Bob Gellman, Woody Hartzog, Claire Hill, Margaret Hu, Aziz Huq, Steve Koh, Bill McGeveran, Justin Murray, Maria Ponomarenko, Eve Brensike Primus, Shalev Roisman, Bruce Schneier, Scott Skinner-Thompson, Francis Shen, Christopher Slobogin, Matt Tokson, Mayank Varia, Lindsay Wiley, Ari Ezra Waldman, Andrew Woods, participants at the University of Florida’s National Security Junior Scholars Workshop, the University of Minnesota Law School’s summer workshop series, the University of Nebraska’s Law & Technology Virtual Workshop, and the University of Oklahoma’s Mini-Conference on Coronavirus and Law. For excellent research and editorial assistance, I thank Avery Bennett, Braxton Haake, Sarani Rangarajan Millican, Daniel Walsh, and the editors of the American University Law Review.
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.