Protecting Pipe Privacy: How Sampling Wastewater and Utilizing Biological Data to Control the Spread of COVID-19 May Violate the Right to Privacy Under the Fourth Amendment

In response to the deadly COVID-19 pandemic, the U.S. Centers for Disease Control and Prevention, federal agencies, and universities have implemented the National Wastewater Surveillance System to detect Coronavirus 2 (SARS-CoV-2) ribonucleic acid in wastewater. By monitoring wastewater for SARS-CoV-2, authorities can identify the presence of COVID-19 before individuals display symptoms or have a positive clinical test result in populations ranging in size from colleges to states. The ability to track COVID-19 cases through wastewater monitoring has proven especially useful given the scarcity of clinical tests and high probability that infected individuals will remain asymptomatic for the duration of their infection. Despite its usefulness, this surveillance raises certain legal issues. The U.S. Constitution grants state governments police powers to protect the public health and safety of their citizens. Concurrently, the Fourth Amendment of the Constitution prohibits both federal and state governments from unreasonably infringing on individuals’ privacy. Based on the U.S. Supreme Court’s historical interpretation of the Fourth Amendment, wastewater testing for SARS-CoV-2 may infringe upon these privacy rights. Although there is no on-point caselaw or pending litigation concerning these issues, such litigation may arise in the future, requiring judges to navigate applying Fourth Amendment jurisprudence to unprecedented circumstances. Ultimately, the sampling and monitoring of wastewater by government agencies to test for molecular markers of SARS-CoV-2 would likely not violate the Fourth Amendment provided that sampling does not become too individualized. It is unlikely that these activities would constitute a search, and, even if they did, they would likely fall under the protection of the special needs doctrine. Conversely, wastewater testing implemented by public schools could very well run afoul of the Fourth Amendment due to the high degree of individualization associated with testing the wastewater of smaller population sizes.