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Planning on writing a blog post tonight on the 4th Am implications of COVID-19 surveillance, building on Alan Rozenshtein& #39;s helpful @lawfareblog post on this. My take: 4A law allows a broad range of approaches. (Quick thread)
Of course it& #39;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& #39;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& #39;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& #39;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& #39;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& #39;t make those decisions under 4A law; that& #39;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
