Public health concerns can trump individual rights
Public health concerns can trump individual rights, including certain expectations of privacy, freedom of movement and Fourth Amendment protections against unreasonable search and seizure.
By Rick Weiss
Washington Post Staff Writer
The federal Centers for Disease Control and Prevention released a phone-book-thick proposed rule yesterday that would give the federal government new powers to track the comings and goings of individual travelers and expand the circumstances under which passengers exposed to a serious communicable disease could be isolated or
quarantined.
The proposed changes are the latest in a series of preparatory moves aimed at solidifying federal health officials' legal authority to take actions aimed at slowing the spread of emerging contagious diseases, such as pandemic flu.
The new provisions -- the costs of which would fall mostly on the travel industry -- call for greater scrutiny of passengers for signs of illness and greater efforts by airlines and others to obtain personal contact information from travelers. They also broaden the list of symptoms that would make people subject to quarantine.
Although the rules strengthen federal authority to isolate passengers suspected of being infected, they also spell out in unprecedented detail key legal rights, including appeals processes, for citizens. The agency will accept public comment for 60 days before issuing a final regulation.
Officials said they are confident that the vast majority of Americans will support the changes so the government could better protect them from a major outbreak -- whether naturally occurring or from a bioterrorism attack.
"We're not talking about quarantining anybody for a sniffle or a cough," said Martin Cetron, director of the CDC's division of global migration and quarantine, in a conference call with reporters.
He added that although travelers would be asked to provide more personal information -- including phone numbers and e-mail addresses -- the goal is simply to be able to contact people if it becomes apparent they sat near an infected person while traveling.
"There are some very rigorous standards of privacy with which this information will be treated," Cetron said.
Many of the proposed changes are the result of lessons learned from the 2003 outbreak of SARS, or severe acute respiratory syndrome, when federal and international health officials realized how hard it was to track down passengers who had shared flights or other transportation with an individual who had the contagious disease.
Flight manifests are sometimes destroyed within days, they found, and customs documents -- being on paper -- were not easily transmitted to health authorities and were often illegible.
The proposed regulation requires airlines operating out of major airports and international cruise operators to request detailed contact information from passengers; maintain that information -- along with the passenger's seat location -- electronically for at least 60 days; and transmit it to the CDC within 12 hours of a
request.
As proposed, passengers could refuse to give personal contact information and still travel. The agency would destroy the information after a year, by which time it would no longer be useful for tracing disease.
The rule also demands that ship and airline captains report to the CDC any deaths or signs of significant illness on board, preferably before arriving at their destination. Existing requirements are less explicit and call for reporting to local health departments instead of federal officials.
The rule spells out a somewhat broadened array of circumstances or symptoms that can result in a passenger being held in quarantine or isolation upon arrival. (The term "quarantine" refers to the time a person is restricted because of suspicion of exposure to a disease but with no sign of illness; "isolation" refers to the time a person is restricted while ill and presumed able to spread the disease.) Practically speaking, the responsibility for detaining passengers falls largely on federal quarantine officers, who are eyeballing and questioning arriving passengers at a growing number of U.S. airports and other transport hubs.
Agency documents supporting the rule emphasize that the courts have long found that public health concerns can trump individual rights, including certain expectations of privacy, freedom of movement and Fourth Amendment protections against unreasonable search and seizure.
A yellow fever epidemic in 1796 prompted Congress to pass the first federal quarantine legislation, and provisions have expanded since then. The government can now quarantine people "reasonably expected to be infected with or exposed to" any of nine diseases: cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers (including Ebola), SARS and pandemic flu.
Under the new proposal, the criteria used to presume infection are broadened to include a fever of 100.4 degrees Fahrenheit or higher in conjunction with other symptoms, to make sure anyone with pandemic flu is included.
Although quarantine is generally seen as a last resort, the CDC documents state, it can be especially important in bioterrorism incidents in which the disease agent has been bioengineered to be especially contagious, drug-resistant or vaccine-resistant.
Federal courts have varied in their rulings on how long the government may hold someone before that person must be afforded an administrative hearing. The proposed rule would allow detention for three business days without a hearing, with an option to extend if medical tests confirm the need.
No one could be forcibly isolated for longer than the amount of time it takes for the suspected disease to be no longer communicable -- less than a month for most diseases.
The CDC estimated that the costs of implementing the new rule nationwide could be $185 million to $865 million per year. That would be a bargain, the agency calculated, given the potential direct and indirect costs of a major outbreak.
The proposed rule is to be published in the Federal Register today and can be viewed at http://www.cdc.gov/ncidod/dq.
