As pressure mounts on state and national leaders to begin reopening the American economy, there are growing questions over whether the government could force citizens to enroll in a digital contact tracing (DCT) program to expedite the identification and isolation of cases of COVID-19. While the legal avenue for such a program is clearer at the state level, the practical implications of a state-by-state approach could yield uneven uptake among states and undermine the entire system once Americans begin to move more freely. Moreover, mandating citizens to enroll in a DCT program could have major repercussions for American democracy and set a dangerous precedent for executive authority. Instead of pursuing compulsory DCT programs, state and federal leaders ought to ensure the developers of these programs integrate insights from behavioral science that maximize citizen uptake.
With the economic consequences of forcing many Americans to spend more than a month in isolation to prevent the spread of COVID-19 becoming clearer, leaders across the country are under pressure to lift lockdowns and reopen businesses. Digital contact tracing (DCT), a process by which the smartphones of sickened individuals can automatically notify others who have been in close proximity to the owner, is one strategy officials are considering to transition American society to a new normal.
In order to be effective, however, contact tracing programs need the participation of about fifty to sevety percent of the population. Given such a high participation requirement, some experts are wondering if participation in these programs should be compulsory for smartphone users. This raises a number of legal and practical questions: would a compulsory DCT program be legal or practical at the state level? What about at the federal level? What are the implications of a compulsory DCT program, and are there any other strategies that could maximize citizen uptake?
Could a Compulsory DCT Program Be Legal at The State Level?
Yes. The Tenth Amendment to the US Constitution vests powers not explicitly granted to the federal government in the states. This includes so-called police powers, or the ability of states to enact strict laws to protect the health and wellbeing of its citizens. While the Supreme Court has been reluctant to define or limit these powers, it has explicitly affirmed states’ ability to enact quarantine and “health laws of every description” necessary to protect public health. Thus, states are well within their right to institute mandatory lockdowns, and the Supreme Court has issued sufficient guidance suggesting a mandatory DCT program would also be permissible.
The Supreme Court’s most relevant guidance came in Jacobson v. Massachusetts, a 1905 case in which the Court ruled in favor of states’ rights to enforce mandatory vaccination laws. It provided two qualifiers on a state’s use of police powers: (1) these laws must be objectively necessary and (2) they must account for situations when harm caused by the law could outweigh the harm avoided.
States would have little trouble proving DCT programs are objectively necessary. Traditional methods of contact tracing in which a public health official, instead of a smartphone, manages the notification of potentially exposed individuals has been indispensable in the fight against diseases like Ebola, HIV/AIDS, and other coronaviruses like SARS and MERS. The problem with the COVID-19 pandemic is that the disease is so widespread and transmissible. Traditional contact tracing would require an army of human tracers to be effective in the US. But smartphone technology fixes this problem by rendering the process automated. Moreover, there is already emerging evidence that DCT has been effective in combatting COVID-19 in East Asia.
The question whether states could account for situational harm is trickier, but it is not insurmountable. For example, states could prove that they had taken steps to avoid data breaches by ensuring DCT application developers use the latest digital security and privacy protection measures. They could also select DCT applications that collect no location or personally identifiable data from the user, but instead rely on anonymous Bluetooth signals to notify users that have been in close proximity to an infected individual, like the one under development by Apple and Google.
Even if the courts deem state-level compulsory DCT programs legal, however, their practicality is much less certain. If the COVID-19 pandemic has taught us anything about states’ behavior, it is that each state is responding differently. While New York Governor Andrew Cuomo has closed schools for the rest of the academic year and ordered nonessential business to remain closed through at least mid-May, Florida Governor Ron DeSantis has already begun reopening his state’s beaches and Georgia Governor Brian Kemp announced that restaurants and movie theaters can begin reopening next week. Once travel restrictions are eased and people begin moving around the country in the summer and fall, people traveling from one state without a compulsory DCT program to another state with such a program (or vice versa) could cause the entire system to break down.
Could a Compulsory DCT Program Be Legal at The National Level?
Probably. But a nationally mandated DCT program would need bipartisan approval in Congress. Despite assertions that his “authority is total,” President Trump cannot issue executive orders without any basis in federal law. After President Truman tried and failed to nationalize American steel factories to end a worker strike during the Korean War, Justice Robert Jackson famously opined in Youngstown Sheet & Tube Co. v. Sawyer that presidential authority is only at its pinnacle when he or she acts with the express or implied will of Congress. Thus, until Congress grants the president such explicit authority, he will have little legal recourse for compelling citizens to enroll in a DCT program.
Even if a federally mandated DCT program could clear through Congress, however, it would establish a dangerous precedent and send American democracy down a slippery slope. Assuming a compulsory DCT program would sunset after the crisis subsides, President Trump and his successors could point to the coronavirus era as precedent for reviving these privacy-infringing applications, which becomes especially problematic for crises of lesser severity. Moreover, as Alan Rozenshtein recently pointed out on Lawfare, a compulsory DCT program takes a giant step towards enabling the government to restrict the people’s freedom of movement. With a compulsory DCT program in place, one can more easily imagine a scenario in which the government fines individuals for coming into contact with too many people in a given day.
Finally, the government should be mindful of situations in Maryland, Texas, Ohio, and recently Pennsylvania, where Americans are protesting local lockdown orders. A federally mandated DCT program could further inflame tensions, potentially inciting more protests. These protests would not necessarily need to be in-person to be damaging; a “virtual protest” encouraging people to turn off their smartphones, leave them at home when the go outside, or merely disable their Bluetooth signal would cripple the DCT programs currently under development.
A Better Option: Insights From Behavioral Science Into a Non-Compulsory Program
Instead of considering whether DCT programs should be compulsory, government leaders ought to ensure developers use insights from behavioral economics and psychology to maximize citizen uptake.
First, users who own smartphones should be enrolled in DCT applications by default and given the ability to opt out. Apple and Google have already announced that their DCT application will be “opt-in only” even though behavioral economists like Richard Thaler and legal scholars like Cass Sunstein have repeatedly shown that making participation the default is far superior at increasing uptake. Singapore, which is seeing a recent surge in new infections, released an opt-in DCT application called “TraceTogether” in March, but only twelve percent of the population opted to download it as of April 1. This is far below the fifty to seventy percent threshold experts say is necessary for contact tracing to be effective.
Second, in order to maximize uptake, those choosing to opt-out should immediately be shown figures on how many citizens in their respective city or state are enrolled in the program and the difference that collective participation can make in combating the pandemic. Betsy Paluck, a psychology and public policy scholar at Princeton University, has shown how powerful revealing social norms can be at influencing human behavior. She and other psychology scholars like Robert Cialdini, Dale Miller, and Deborah Prentice have shown the extent to which people dislike deviating from social norms, and that people will change their own behavior to comply with these norms. Providing a simple statistic to the “opt-outers” showing them that their decision will place them into a socially deviant category could serve as a powerful deterrent from doing so, even if they still object to the idea.
The question of whether a DCT program ought to be compulsory or optional is critical, but it is just one of many legal and practical questions surrounding America’s contact tracing strategy. Robert Chesney recently outlined a number of additional essential features to a planned DCT program, such as sunset clauses, mandatory data-deletion deadlines, access limits, and real-time auditing and public reporting, that ought to be adopted regardless whether the program is mandatory or optional. With the COVID-19 pandemic unfolding so quickly, it is critical for legal and policy experts to play a leading role in ensuring measures taken by the government are ethical and in compliance with the rule of law. It is ultimately on the American people to keep the guardrails on our democracy.
Theo Wilson is a Master of Public Affairs Candidate at Princeton University’s Woodrow Wilson School of Public and International Affairs and a national security consultant for Speaking Truth to Power, a freedom of information legal organization based in Philadelphia. He is a former graduate intern at the Center for Ethics and the Rule of Law at the University of Pennsylvania Carey Law School, and former senior program officer at Freedom House. He is on Twitter at @twilson008
Suggested Citation: Theo Wilson, Compulsory Digital Contact Tracing Is Probably Legal, but Still Sub-Optimal, JURIST – Student Commentary, April 26, 2020 https://www.jurist.org/commentary/2020/04/theo-wilson-compulsory-contact-tracing/.
This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
