Your Privacy Rights in the Time of COVID-19

, , , , The Cullen Law Firm, PLLC

 

Earlier this month, the governor of Utah enacted an executive order to combat the spread of COVID-19 that requires travelers to turn over detailed personal information when entering the state. The executive order raises serious constitutional questions about the validity of warrantless government searches and serves as a timely reminder that even a national health emergency does not permit the government to disregard constitutionally protected privacy rights.

While several states have imposed checkpoints at their respective borders to limit the spread of the coronavirus, Utah has gone one step further. Under Executive Order 2020-15, individuals over the age of 18 entering Utah are required to complete a travel declaration providing the following information:

  • Full name.
  • Date of birth.
  • Point of entry into Utah.
  • COVID-19 related health information.
  • Whether the individual is a Utah resident or a non-resident visitor or worker.
  • Home address.
  • Phone number.
  • Email address.
  • Final destination in Utah if the individual is a non-resident visitor or worker.
  • Places the individual has traveled to or from in the previous 14 days.
  • Names of individuals traveling with the individual completing the form who are younger than 18 years old.

At nine different locations, principally along interstate highways, the Utah Department of Transportation established geofencing that prompted nearby cell phone users to complete the online travel declaration. While the Utah Department of Transportation has since abandoned its geofencing strategy, drivers are still required to provide the required information.

Although well-intentioned, the information collected by the travel declaration has serious privacy implications. It is one thing to take notice of out-of-state license plates crossing the border, or even to stop such vehicles to inform them of state stay-at-home policies, but it is no small matter to obtain an individual’s personal information and location for the past 14 days. Under both federal and state constitutions, individuals are generally protected against such warrantless, suspicionless searches.

Accordingly, the United States Supreme Court has held, in invalidating suspicionless highway stops, that “an individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation.”[1]  Similarly, the Utah Supreme Court, while emphasizing that the Utah Constitution provides a greater expectation of privacy than the United States Constitution, has struck down sweeping suspicionless highway inspections.[2] More recently, the United States Supreme Court has cast doubt on the ability of governments to collect data about an individual’s movement that would reveal intimate details about his or her daily life—precisely the type of intimate details that could be revealed in tracking a person’s movement over 14 days.[3] 

Even under special circumstances, when obtaining a warrant is impracticable, searches must be reasonable. The touchstone of reasonableness in these circumstances is often strict administrative guidelines to prevent the misuse of information obtained. It is unclear whether Utah’s executive order would pass constitutional muster even under this more lenient standard.

In response to swift opposition by the motor carrier industry, including the Owner-Operator Independent Drivers Association, the governor enacted a new executive order exempting commercial motor vehicle drivers, among others, while leaving in place the travel declaration requirement for individual travelers.[4] Unfortunately, as the COVID-19 pandemic continues to unfold, Utah is unlikely to be the only state to enact overreaching policies aimed at stemming the virus’s spread. Even in these extraordinary times, efforts to protect the public’s health must still conform to federal and state constitutional protections.

For more information about how state COVID-19 policies impact your constitutional rights or to share information about how states or localities are enacting policies to prevent the spread of the virus, please contact:

Gregory R. Reed       (202) 298-4767           grr@cullenlaw.com

Paul D. Cullen, Jr.    (202) 944-8600           pxc@cullenlaw.com

______________

[1] Delaware v. Prouse, 440 U.S. 648, 662 (1979).

[2] State v. DeBooy, 996 P.2d 546, 549, 551 (Utah 2000).

[3] Carpenter v. U.S., 138 S. Ct. 2206 (2018); U.S. v. Jones, 565 U.S. 400 (2012). 

[4] Executive Order 2020-16, available at https://rules.utah.gov/wp-content/uploads/Utah-Executive-Order-No.-2020-16.pdf.

Comments are closed.