The vaccine concerned and many others are worried about contact tracing, so for whatever it’s worth, here are some initial thoughts.

First, let’s get on the same page. Last month, the CDC published information about it. Here it is:

“Certain core principles of contact tracing must always be adhered to:
• Contact tracing is part of the process of supporting patients with suspected or confirmed infection.
• In contact tracing, public health staff work with a patient to help them recall everyone with whom they have had close contact during the timeframe while they may have been infectious.
• Public health staff then warn these exposed individuals (contacts) of their potential exposure as rapidly and sensitively as possible.
• To protect patient privacy, contacts are only informed that they may have been exposed to a patient with the infection. They are not told the identity of the patient who may have exposed them.
• Contacts are provided with education, information, and support to understand their risk, what they should do to separate themselves from others who are not exposed, monitor themselves for illness, and the possibility that they could spread the infection to others even if they themselves do not feel ill.
• Contacts are encouraged to stay home and maintain social distance from others (at least 6 feet) until 14 days after their last exposure, in case they also become ill. They should monitor themselves by checking their temperature twice daily and watching for cough or shortness of breath. To the extent possible, public health staff should check in with contacts to make sure they are self-monitoring and have not developed symptoms. Contacts who develop symptoms should promptly isolate themselves and notify public health staff. They should be promptly evaluated for infection and for the need for medical care.”

Here is the url and it includes more details:

https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html

There are (at least) two important parts to this statement of principles:

1. There appears to be some privacy protection built in insofar and the source of the possible exposure is not provided. That’s to the good.

2. There is no compulsory language in the CDC’s statement of core principles with respect to contract tracing (though there are two “should[s]” if you have symptoms, and “should” seems close to compulsory.

ONE BIG CAVEAT/LIMITATION: This CDC statement is just a guideline and does not have the force of law. Meaning, it is not binding on the state and local governments, which are the governmental entities which carry out contact tracing and quarantine policies and regulations.

And therein lies the problem and the source of the fear of many.

Every state has or can have its own take on these guideline/principles. If past conduct during the pandemic is any guide, I would expect the democratic led states to be more intrusive and authoritarian in terms of contact tracing and quarantine than red states. That is either a good thing or bad, depending on your perspective.

These differences will in the near term find its way in to different approaches to contact tracing.

Just for grins, I used my legal case search tool to do a national all-state and federal search for “contact tracing.” I did not find any authority on its legality or jurisprudential limitations. In the last two months, the term has appeared in over a half dozen federal and state cases involving prisoners trying to get out of jail because of pandemic using contact tracing data to support their argument. I also found some older cases mentioning the term in the context of prior epidemics, including AIDS. However, I did not find any case law either upholding contact tracing or rejecting it on privacy or any other grounds. If there is some case so holding, shoot me an email with the case citation.

Speaking of privacy, here is a little context and comparison. In AIDS contact tracing, they were asking about sexual partners. It does not get more intrusive than that, especially if the person had multiple sexual partners and/or partners, the sex of whom, the exposed person might not have been happy about sharing. My recollection of the times was that initially, people, especially gays who frequented the bath houses and gay bars, protested about their privacy rights. And in the beginning, AIDS was viewed as a gay and drug addict disease. Meaning there was considerable stigma attached to the contact tracing. However, once that community and the rest of the world realized how deadly the disease had become, and with the onset of treatments imported from abroad, there was much less privacy concerns about contact tracing.

Comparing that (sexual) and stigmatizing contact tracing to current tracing seeking information about who you were closer than six feet for more than 10 minutes seems pretty benign (usually anyway).

As I see it there are three big unresolved issues or uncertainties with contact tracing:

First: Will it be voluntary and without penalty for refusal to provide contact tracing information

Second: Will the data be collected by humans in interviews or will the data be collected actively or passively from phones via apps, blue tooth and GPS.

Third and most importantly: Whether there will be compulsory and enforceable quarantining for the healthy, non-infected contacts who refuse to self-isolate?

Historically, and as a general rule, government agencies have attempted to use persuasion rather than compulsion in the contact tracing context, and there has not been much resistance to contact tracing during the last few Asian and African epidemics. Of course, the that could change if a significant number of people in a hotspot refused to provide contact information. The most recent reported example is what is going on in the state of Washington. Government authorities are making it clear that contact tracing is now voluntary (but up until recently businesses were required to log customer contact information, to be used by the authorities in case of any an outbreak which could be connected to that business). Here’s a recent article describing this recent change in policy.

https://www.king5.com/article/news/health/coronavirus/washington-state-contact-tracing-daily-customer-log-governor-inslee/281-1f2579bc-38ce-4275-b39f-8de66c50807c

Could that change (or go back to mandatory reporting by stores and other commercial operations)? Possibly, if there is a second wave, and if too many people refuse to provide contact information. But because of the answer to the next question, I don’t think that is going to happen?

How will with contact information be collected?

So far, there seems to be a governmental preference for live contact tracers, mostly because of privacy concerns about turning everyone’s cell phone into a personal tracking device providing real time data to government/big brother about everyone’s movements.

However, I do not think that human contact tracing will be adequate after the country fully reopens, if there is a second wave, as opposed to isolated hot spots. There are just too many contacts/data points to be collected in big cities, if their hundreds of new cases every day. If there is a second waive, the cities who are hit will have to perform all or some part of the contact tracing via apps phones and computers.

Are there privacy concerns about this? Absolutely. Will there be lawsuits challenging the apps and regulation requiring compliance? For sure there will be. Will they succeed? Probably not as long as there are safeguards and time limitations on the data collection.

Beyond privacy concerns, there are practical and logistics challenges. If it is app based, versus passive, systems, how do you compel or cajole everyone to download the app?. Stores and restaurants could require a tracking apply to get in, like stores now require face masks. Public spaces would be more difficult if not impossible, unless there are fixed entry and exit points.

The main takeaway is that contact tracing is thought to be an effective tool in preventing the spread of a virus like COVID-19. Therefore, it seems a safe bet that if the human contact tracing systems becomes overstressed, as is likely to be the case if there is a large second wave in big cities, highly efficient and cost-effect technological solutions will be employed, giving due consideration (read: lip service) to privacy concerns. As I often say in these posts, the constitution is not a suicide pact, and your privacy rights do not include the right to put me at risk for a lethal communicable disease.

Will there be compulsion for self-isolation based on positive contacts?

The first and preferred will be persuasion. The second method will be more persuasion. The third might be social pressure. At some point, however, compulsion will be tried by some local or state government authorities. You all recall the recent New Jersey Ebola case where a health care practitioner returning from Africa refused to self-isolate. With increased contact tracing, and especially as things go back more towards normal, there might be more of these types of cases which will end up in the courts. Despite the constitution not being a suicide pact, it is not a slam dunk that all courts will for a healthy asymptomatic person into isolation. So, my answer is that that I wouldn’t be surprised if some democratic states or counties try to legally enforce self-isolation for people who been identified as having been in contact with an infected person, but I think some courts might reject it. In another post in the very near future, I will get into the legal weeds about the arguments for and against compulsory self-isolation for heathy people, via an extensive discussion of an old case. It’s a good story and you folks will like it a lot!

Can they take away your kids if you and your wife test positive?

I recently read something stating that in an Oregon regulation posted on social media, and frankly, it shocked me, until I realized that there is much misinformation and exaggeration on social media. Still it seemed insane to me, at least the way it was described. I looked around the internet, and found a response to what was circulated on social media by the Oregon authorities.

In short, the authorities say that it would only happen if the both parents are too sick to take care of their kids, that it is voluntary, and only if the parents could not find someone else they know to take their kids.

Here it is:

https://apnews.com/afs:Content:8872060016

I guess that makes me feel a little better, but keeping an eye on this would be a good idea.

Rick Jaffe, Esq.