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Boston University School of Law




The National Security Agency's domestic surveillance program has parallels in the growth of disease surveillance for public health purposes. This article explores whether laws requiring health providers to report to government names and identifiable information about patients with infectious or chronic diseases may be vulnerable to challenge as an invasion of privacy. A shift in the use of disease surveillance data from investigating disease outbreaks to data mining and analysis for research, budgeting, and policy planning, as well as bioterrorism, tests the boundaries of liberty and privacy. The Supreme Court has not reviewed a disease reporting law. Its few related decisions offer little guidance for evaluating the constitutionality of modern surveillance functions. Legal constructs underpinning early laws intended to detect epidemics do not easily accommodate modern surveillance systems, while the more general goal of protecting public health offers no clear principle for limiting government access to identifiable medical information. The article categorizes modern surveillance functions and suggests a more robust approach to balancing the state's interests in obtaining medical information and individual privacy interests.


Symposium: Extraordinary Powers in Ordinary Times

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