CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, October 16, 2020

Rozenshtein on Digital Disease Surveillance

Alan Z. Rozenshtein (University of Minnesota Law School) has posted Digital Disease Surveillance (70 American University Law Review (2021 Forthcoming) on SSRN. Here is the 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.

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