Contract tracing: What is it and is it even legal?

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Guest Columnist

Many terms have entered into our vocabularies during this COVID-19 era. One of them is “contact tracing.” This is the process of finding and identifying people in close contact with someone who is infected with a transmissible pathogen. It isn’t really a new process; it’s been a pillar of controlling communicable diseases for decades. Smallpox was eradicated by widespread contact tracing, in conjunction with a vaccine (“What we learn from eradicating smallpox: WHO COVID-10 briefing”, World Economic Forum, May 9, 2020). But how to implement contact tracing is debatable and has legal implications.

The government could mandate citizens participate in contact tracing. The Tenth Amendment to the United States Constitution instills police powers in the states, allowing them to enact a variety of strict laws with the aim of protecting the health and wellbeing of its citizens. The Supreme Court, going back to 1905, has ruled in favor of states’ rights to enact and enforce laws aimed at fighting disease (Jacobson v. Massachusetts, 197 US 11, 1905). Mandatory vaccination laws, for instance, have been upheld provided the laws are objectively necessary and they account for situations when harm caused by the law could outweigh the harm avoided. A nationally mandated program would be trickier, as it would require bipartisan approval in Congress, because the president cannot enact a program by Executive Order, so Congress would have to grant explicit authority. 

But, although it is legal and constitutional for the government to enact and enforce laws such as contact tracing, how could it possibly be implemented and enforced?  These are the real questions, since studies have shown that over 55% of the population would have to opt in for any such program to be effective. And requiring everyone to participate would not be effective without any enforcement mechanism. So, that means the government would have to convince citizens to participate. Smartphones could be enrolled in contact tracing applications by default and given the option to opt out. Apple and Google, however, have already announced their apps will be “opt-in only.” With fears of data breaches, and privacy concerns, it would be a system built on trust.

Can a system built on trust work in 2020? Just getting people to wear masks has been a controversial undertaking, even though polls show most Americans have worn masks in public and agree that it is a reasonable measure to combat the spread of COVID-19. But, as with the other measures, there will likely be no penalties for citizens refusing to participate. Personal rights and liberties are enshrined in the Constitution and are cherished.

The ethical issues raised in enforcing any laws designed to wipe out a highly communicable disease have long been debated, going back to one of the most famous cases in American history, Mary Mallon, who spent much of her life in forced isolation  in the early 1900s, after she repeatedly spread typhoid to countless people, killing as many as 50, when she worked as a cook in and around New York City. She came to be known as Typhoid Mary, and the ethics of her having years spent in forced quarantine are still debated.

Today, with the number of COVID-19 cases in the United States in the millions, and the impracticability of policing hundreds of millions of Americans, we don’t have to worry about millions of Mary Mallons being locked away. 

The debate in 2020 is how, without millions of Americans voluntarily opting-in to contact tracing, can we combat a 2020’s version of Typhoid Mary.

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