Constitutional Authority to Regulate the Privacy of State-Collected Contact-Tracing Data

Constitutional Authority to Regulate the Privacy of State-Collected Contact-Tracing Data

Legal Sidebari

Constitutional Authority to Regulate the
Privacy of State-Collected Contact-Tracing
Data
June 26, 2020
Amid the ongoing COVID-19 pandemic, several states have developed and promoted contact-tracing
mobile device apps to identify individuals who may have had contact with infected persons. Additionally,
the two largest manufacturers of mobile device operating systems, Apple (iOS) and Google (Android),
have announced plans to release application programming interfaces (APIs) to “enable interoperability
between Android and iOS devices using apps from public health authorities.”
Several bills in the 116th Congress would regulate the privacy of information collected through such
contact-tracing apps. (For a detailed comparison of these bills, see CRS Legal Sidebar LSB10501,
“Tracing Papers”: A Comparison of COVID-19 Data Privacy Bills, by Jonathan M. Gaffney.)
 S. 3663, the COVID-19 Consumer Data Protection Act of 2020, would (1) require certain
covered entities that collect contact-tracing information to provide individuals with prior
notice of such collection and the opportunity to opt-in to such collection; (2) prohibit the
use of such information for purposes unrelated to tracking the spread of COVID-19; and
(3) require covered entities to publicize their privacy and data security practices.
 S. 3749 and H.R. 6866, the Public Health Emergency Privacy Act (PHEPA), would
prohibit certain entities from disclosing contact-tracing information for purposes
unrelated to public health. The bill would also prohibit such information from being used
for commercial advertising or marketing purposes, or to discriminate against individuals
with respect to “goods, services, facilities, privileges, advantages, or places of
accommodations.” Covered entities include state governmental entities, although PHEPA
specifically exempts public health authorities.
 S. 3861, the Exposure Notification Privacy Act (ENPA), requires operators of “automated
exposure notification systems” (AENS) to limit enrollment in such systems to individuals
who have provided affirmative express consent, to publicize the system’s privacy policy,
and to limit transfers of covered data to the minimum necessary to notify other users or a
public health authority of potential exposures. ENPA also requires operators of an AENS
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to establish data security practices to protect the confidentiality, integrity, availability, and
accessibility of covered data.
In general, the bills above limit coverage to entities subject to the jurisdiction of the Federal Trade
Commission or explicitly exempt state public health authorities. Nevertheless, during the debate
surrounding this legislation, questions may arise over Congress’s authority to regulate state governments’
collection and dissemination of the relevant information. As context for that potential debate, this Legal
Sidebar examines constitutional limitations on Congress’s regulation of state activity, particularly in the
context of applying federal privacy protections to state-held information.
Federalism and the Anticommandeering Doctrine
Unlike the state governments, which enjoy a general police power, the federal government is limited to
those enumerated powers provided to it in the U.S. Constitution. One such power that is particularly
relevant to the instant analysis is the Constitution’s Commerce Clause, which allocates to Congress the
power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.” The Supreme Court has interpreted the Commerce Clause as authorizing Congress to regulate
“the channels of interstate commerce, persons or things in interstate commerce, and those activities that
substantially affect interstate commerce.”
Legislation that falls within the bounds of the Commerce Clause may still be unconstitutional if it
breaches “the principles of federalism contained in the Tenth Amendment,” which provides that “[t]he
powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” Whether the Tenth Amendment restricts Congress’s
authority to impose generally applicable regulations on the activities of states and their instrumentalities
has been an ongoing debate since the latter half of the 20th century.
Legal Background
In 1974, the Court decided National League of Cities v. Usery, holding that Congress may not use the
Commerce Clause to dictate “how essential decisions regarding the conduct of integral governmental
functions are to be made.” But the Supreme Court expressly overruled National League of Cities in its
1985 decision in Garcia v. San Antonio Metropolitan Transit Authority after efforts to define the scope of
“integral governmental functions” proved “both impracticable and doctrinally barren.” On the other hand,
following Garcia, the Court held in two cases that Congress violates the Tenth Amendment when it
commandeers states to enact or administer a federal regulatory program. In New York v. United States, the
Court struck down a federal law that compelled states “to provide for the disposal of the radioactive waste
generated within their borders.” Similarly, in Printz v. United States, the Court invalidated a provision of
federal law that required “state and local law enforcement officers to conduct background checks on
prospective handgun purchasers.”
Regulating State Databases
After the New York and Printz decisions, the Supreme Court decided Reno v. Condon in 2000, a Tenth
Amendment challenge to the Driver’s Privacy Protection Act (DPPA). The DPPA generally restricts the
sale and disclosure of personal information held by state motor vehicle departments (DMVs) without an
individual’s consent. The DPPA also restricts the resale and redisclosure of drivers’ information by private
parties who have obtained that information from a state DMV.
After first holding that the Commerce Clause properly encompassed the sale or disclosure of such
personally identifiable information as a “thing in interstate commerce,” the Court found no Tenth

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Amendment concerns with the federal statute. Distinguishing the DPPA from the statutes struck down in
New York and Printz, the Court held that
the DPPA does not require the States in their sovereign capacity to regulate their own citizens. The
DPPA regulates the States as the owners of data bases. It does not require the South Carolina
Legislature to enact any laws or regulations, and it does not require state officials to assist in the
enforcement of federal statutes regulating private individuals. We accordingly conclude that the
DPPA is consistent with the constitutional principles enunciated in New York and Printz.
Most recently, in 2018, the Court’s decision in Murphy v. National Collegiate Athletic Association
reaffirmed the principle set forth in Reno that “[t]he anticommandeering doctrine does not apply when
Congress evenhandedly regulates an activity in which both States and private actors engage.”
Analysis
Questions about Congress’s authority to regulate the privacy of information collected by state public
health departments through contact-tracing apps are seemingly similar to those the Supreme Court
addressed in Reno v. Condon. As noted above, the Court in Reno first concluded that pieces of personal
information collected by state DMVs were “things in interstate commerce” that fell within the Commerce
Clause’s scope. Under this reasoning, courts would likely consider the information collected by state
public health departments through contact-tracing apps to likewise be “things in interstate commerce”
subject to federal regulation under the Commerce Clause.
In addition, Reno appears to suggest that the Tenth Amendment is generally not an obstacle to federal
regulation of the sale and disclosure of personal information collected through contact-tracing apps if
such regulation is applied “evenhandedly” to both state and private holders of this information. The
rationale under which the Reno Court upheld the DPPA’s privacy requirements—that the statute “does not
require the States in their sovereign capacity to regulate their own citizens” but merely “regulates the
States as the owners of data bases”—appears to be equally applicable to security and interoperability
requirements imposed on public and private custodians of contact-tracing data. Consequently, applying
the Court’s reasoning in Reno, so long as such federal regulation of contact-tracing apps applies
evenhandedly to both state and private actors, and does not also require states to enact legislation or
refrain from enacting legislation, it would likely not raise constitutional issues under the Tenth
Amendment.

Author Information

Edward C. Liu

Legislative Attorney

Disclaimer
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