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Planning on writing a blog post tonight on the 4th Am implications of COVID-19 surveillance, building on Alan Rozenshtein's helpful @lawfareblog post on this. My take: 4A law allows a broad range of approaches. (Quick thread)
Of course it's hard to speak generally about this, as 4A law is so fact-specific. But assuming the govt is doing things that amount to govt searches, the special needs exception is likely to permit the govt a wide range in which to act.
That's mostly because the "special need" here is so obviously compelling. There are roughly three stages to any govt response to the pandemic. 1st stage is shut down --get things under control. 2nd is ramping back up pre-vaccine -- try to partly normalize if can do it.
3rd stage is vaccine -- then we can finally go back to normal. We'll probably have at least a year of stage 2, in which we slightly open up some things while trying to keep breakouts in check. That stage 2 opening up likely can be done more, and more safely, w/ some surveillance.
Of course, how much surveillance can help is a practical question. But when the default (stage 1) is the government ordering you to not leave your home, surveillance can be a freedom-enhancing alternative. It can make the partial opening up of stage 2 less dangerous.
In the special needs calculus, that's would seem to be a rather enormous "government interest" (really, a public interest) during the window of the shift from stage 1 to stage 2.
Now pair that with some obvious sensible limits on those surveillance practices, like a sunset clause (only allow program during stage 2) and use restrictions (forbid use of the data for non-stage-2 purposes). Seems likely that any court would uphold something like that.
Of course, that doesn't answer which particular surveillance practices should be used, or how, or if they should be used by any particular government. Lots of big choices to be made. But courts won't make those decisions under 4A law; that's up to elected officials, not judges.
Or so I plan to argue (in a more nuanced blog version) in my post. Comments/reactions/anger/rotten-fruit welcome. /end
