PANOPTICONSERVATISM:

A threshold question in any Fourth Amendment analysis is whether the government activity is a "search." An activity is a search and thus triggers the Fourth Amendment if it infringes on a reasonable expectation of privacy (the Katz test) or it involves a government trespass (the Jones test). Different forms of disease surveillance could trigger the Fourth Amendment under one or both of these tests. For example, any government surveillance program that required individuals to download an app on their phones might constitute a Fourth Amendment search under the trespass test, since it would interfere in individuals' property interests--that is, to control what is on their devices. By contrast, if the government were to track people's movement by directly surveilling cellphones--for example, though IMSI (international mobile subscriber identity) catchers, which mimic cell towers--that might violate a person's reasonable expectation of privacy.

Things become more complex if the government were to compel third parties--cellphone companies, internet platforms, medical-device makers or health care providers--to turn over data. A long-established carve out to the Katz reasonable-expectation-of-privacy test is the "third-party doctrine": People cannot claim a reasonable expectation of privacy in information they have voluntarily handed over to a third party and that the government subsequently acquires.

Tweet   @brothersjudd