key: cord-322837-tqgwgvo0
authors: Gable, Lance; Ram, Natalie; Ram, Jeffrey L
title: Legal and Ethical Implications of Wastewater SARS-CoV-2 Monitoring for COVID-19 Surveillance
date: 2020-06-24
journal: J Law Biosci
DOI: 10.1093/jlb/lsaa039
sha: 
doc_id: 322837
cord_uid: tqgwgvo0

Scientists have observed that molecular markers for COVID-19 can be detected in wastewater of infected communities both during an outbreak and, in some cases, before the first case is confirmed. The CDC and other government entities are considering whether to add community surveillance through wastewater monitoring to assist in tracking disease prevalence and guiding public health responses to the COVID-19 pandemic. This scientific breakthrough may lead to many useful potential applications for tracking disease, intensifying testing, initiating social distancing or quarantines, and even lifting restrictions once a cessation of infection is detected and confirmed. Yet, new technologies developed in response to a public health crisis may raise difficult legal and ethical questions about how such technologies may impact both the public health and civil liberties of the population. This Article describes recent scientific evidence regarding COVID-19 detection in wastewater, identifying public health benefits that may result from this breakthrough, as well as the limitations of existing data. The Article then assesses the legal and ethical implications of implementing policy based on positive sewage signals. It concludes that the first step to implementing legal and ethical wastewater monitoring is to develop scientific understanding. Even if reliability and efficacy are established, limits on sample and data collection, use, and sharing, must also be considered to prevent undermining privacy and autonomy in order to implement these public health strategies consistent with legal and ethical considerations.

limits on sample and data collection, use, and sharing, must also be considered to prevent undermining privacy and autonomy in order to implement these public health strategies consistent with legal and ethical considerations.

The COVID-19 pandemic has challenged civil society worldwide in unprecedented ways and has revealed the need for real-world solutions to dire health and economic concerns. During the initial phase of the pandemic, many state and local officials implemented extensive efforts to achieve social distancing and "flatten the curve" of the outbreak through expansive stay-at-home orders and related restrictions. 1 These restrictive measures have been important for controlling the spread of disease, but have also imposed a severe social and economic burden on many people. By contrast, the federal government has ordered the continued operations of meat 

those locations. These methods may also be a boon to communities where cases of COVID-19

have not yet spiked, providing an opportunity to get ahead of the first wave of the outbreak even if widespread testing is not feasible.

Wastewater monitoring may be one such new community detection method. Recent research indicates that the coronavirus that causes COVID-19-SARS-CoV-2-not only infects the respiratory system but also infects the gastrointestinal system and ultimately appears in feces.

Researchers found that a large amount of virus resides in the gastrointestinal tract, where it adheres to and is retained by epithelial cells that line the intestines and from which it is shed into feces. 15 Clinical studies found SARS-CoV-2 was in feces in the majority of patients where this was studied. In fact, a positive signal for SARS-CoV-2 in feces was present in adults an average of 12 days after nasal-throat swabs turned negative and in pediatric patients, on average, more than 2 weeks after the virus had completely disappeared from throat swabs. 

8 the first positive signal in one of the cities (Amersfoort) was obtained on March 5, 18 the day before the first case of COVID-19 was confirmed there in two high school students. 19 Studies at MIT 20 and elsewhere 21 similarly confirmed the sensitive detection of SARS-CoV-2 markers in wastewater of municipalities where the disease is known to be occurring.

Scientists say their purposes for carrying out these studies included "to monitor the circulation of the virus in the population," 22 to obtain "population-wide data [to] help inform modeling efforts," 25 and "to detect pathogens in populations when investigations in humans is difficult for logistic, ethical or economic reasons." 26 The question of whether the collection of samples solely for such population-level surveillance and model-building purposes may nevertheless raise individualized privacy concerns is discussed in Part II.

Moreover, scientists and other commentators have additionally suggested that the results of wastewater monitoring of SARS-CoV-2 may trigger actions that more directly affect the movement and privacy of people. They aver that sewage-based data will "inform decisions

surrounding the advancement or scale-back of social distancing and quarantine efforts," 27 and that community monitoring "at the municipal or community level … may allow for more granular detection of SARS-CoV-2 … to help preemptively enact public health measures prior to the widespread onset of disease." 28 Detecting SARS-CoV-2 through this method may precede confirmed reports of disease by a week or two, such that "tracking viral particles in wastewater could give public-health officials a head start on deciding whether to introduce measures such as lockdowns." 29 If wastewater-based epidemiology can be applied at a community level, then "effective intervention can be taken as early as possible to restrict the movements of that local 

The proposed use of wastewater screening to detect SARS-CoV-2 viral RNA has the potential to greatly enhance our technical capabilities to identify, track, pinpoint, and quantify 32 Second, public health authorities could use this information to justify increased testing among people living in homes or working at sites close to where the virus has been found in wastewater, or to implement neighborhood-wide screening programs in these areas. The use of these data to target resources to provide voluntary screening programs in areas with SARS-CoV-2 detection likely would not implicate legal concerns. Courts have long recognized that public health powers include the authority to conduct testing and screening programs. 46 In addition, voluntary screening programs facilitate individuals' autonomy and right to refuse testing. By contrast, a conditional screening program, which would require a person subject to a quarantine order to be tested prior to being able to leave their home would necessitate balancing the state's use of police powers against the rights of a specific individual to refuse testing. Well-established legal precedent suggests that efforts to require testing or treatment for a high-dangerous infectious disease falls within a state's legal powers. 47 If individuals refuse to cooperate, they would not be physically forced to get tested, but they might be subjected to other restrictions such as quarantine or reasonable monetary penalties. Refusing individuals are thus presented

14 with a choice of complying with the testing or treatment, or being subjected to more restrictive powers. The implications of these more restrictive powers are discussed below.

Conditional screening requirements based on wastewater detection of SARS-CoV-2 may raise Fourth Amendment concerns. Courts are likely to uphold such requirements, so long as the regulatory framework for conditional screening strikes a reasonable balance between privacy interests and legitimate public health needs. Where the government undertakes surveillance activities primarily to advance public health purposes, courts have generally upheld such activities under the special needs doctrine. 48 In this context, the government is not constitutionally required to secure a warrant before engaging in a search. Rather, courts will sustain a public health programs so long as they reasonably balance between privacy interests nationality. 52 This concern would be particularly acute with respect to the use of wastewater screening to impose substantial restrictions on movement. If such restrictions were targeted only at urban neighborhoods with sufficient density to detect SARS-CoV-2 in wastewater, the practical effect might be imposing restrictions disproportionately on areas that are populated predominantly by people of color. Government officials must avoid discriminatory applications of restrictive powers. Beyond their legal obligations, moreover, government officials bear an ethical obligation to consider whether the impact on the community is just when imposing restrictions and to support communities disproportionately harmed by restrictive orders. 53 Fourth, public health authorities could extend or reimpose community-wide social distancing measures based on positive wastewater screening for SARS-CoV-2. In the current crisis, such measures have included closing businesses, prohibiting gatherings in affected areas, and limiting participation in activities deemed non-essential. Courts are likely to be deferential to government-imposed restrictions along these lines. 54 

Wastewater screening for SARS-CoV-2 could provide an important tool to detect new outbreaks of COVID-19 and to target resources to intervene to stop the spread of the disease; however, scientific research must establish the efficacy of such testing in identifying communitybased COVID-19 infections before its use can be considered as the basis for public policy. Very little research on the efficacy of SARS-CoV-2 monitoring in sewage has been accomplished given the recent emergence of the disease and discovery of the virus in feces and sewage. We infections can be established, wastewater data might also feasibly be used to indicate when areas are ready to relax restrictive measures or to detect a reversal or continuation of trends towards recovery.

Until reliability and efficacy are demonstrated, implementing wastewater screening for SARS-CoV-2 to target public health resources, to require testing, to impose restrictions on movement, or to remove restrictions based on an absence of virus in the wastewater, is premature. Even if reliability and efficacy are established, we recommend that for efforts to implement wastewater screening for disease and other biological markers, legal and ethical considerations must be taken into account, including appropriate limits on sample and data collection, use, and sharing, so as to prevent unduly undermining privacy and autonomy, and to reduce the potential for problematic misuse of data or coercive interventions. As our scientific understanding of the connection between the presence or absence of SARS-CoV-2 in wastewater improves, however, these data could be the basis for scientifically informed decisions to implement public health intervention strategies consistent with legal and ethical considerations. 

Virus Hunters Find Coronavirus Clues in Sewage, CIRCLE OF BLUE: WATER NEWS

Sars-Cov-2 Titers in Wastewater Are Higher than Expected from Clinically Confirmed Cases, MEDRXIV PREPRINT

Time Course Quantitative detection of SARS-CoV-2 in Parisian Wastewaters Correlates with COVID-19 Confirmed Cases

) (emphasis omitted); see also United States v. Spain, 515 F. Supp. 2d 860, 861 (N.D. Ill. 2007) United States v. Hajduk, 396 F

See Riverdale Mills, 392 F.3d at 64 (noting that

Wheat.) 1 (1824) (articulating a broad scope for state police powers, including "[i]nspection laws, quarantine laws, health laws of every description

11 (1905) (upholding broad public health authority under state police powers)

See Jacobson, supra note 37 (upholding authority to mandate smallpox vaccination under state police powers)

Quarantining the Law of Quarantine: Why Quarantine Law Does Not Reflect Contemporary Constitutional Law Norms, 9 WAKE FOREST

US Emergency Legal Responses to Novel Coronavirus: Balancing Public Health and Civil Liberties

Cal. 1900) (invalidating a racially discriminatory mass quarantine order in San Francisco for bubonic plague that only applied to Chinese-American neighborhoods)

Health Justice Strategies to Combat COVID-19: Protecting Vulnerable Communities During a Pandemic

The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) (upholding a state order moving slaughterhouse downstream in response to cholera outbreaks)

The authors would like to acknowledge Bobby Teng, Wayne State medical student, for suggesting SARS-CoV-2 in wastewater as a topic of research interest at Wayne State, and Dr.Philip Pellett, chair of Biochemistry, Microbiology, and Immunology at Wayne State, for