Public Transit Emergency Preparedness Against Ebola and Other Infectious Diseases: Legal Issues (2017)

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20 South Korea responded to the outbreak by enforc- ing quarantine and isolation policies for people exposed MERS-CoV, and by implementing social distancing measures. Over the course of the outbreak, South Korea quarantined more than 16,000 people.173 The government passed tough enforcement measures, setting a maximum sentence of 2 years in prison and $18,000 in fines for individuals who failed to comply with quarantine orders.174 To reduce oppor- tunities for viral transmission, educational authori- ties closed 2,474 schools, including 22 universities.175 This decision was controversial; the schools were later reopened after international and South Korean public health experts reported that the virus was not spreading in schools.176 As the outbreak continued, South Korean health authorities discovered that the virus had spread primarily through Samsung Medi- cal Center, one of the country’s leading hospitals, where a MERS patient infected 80 of his visitors and fellow patients.177 While educational and health officials imposed social distancing measures by closing schools and limiting hospital admissions, individuals voluntarily limited their exposure to other people. During the outbreak, in-store purchases at department stores fell as much as 20%, and cinema visits fell by over 50%.178 Foreigners tried to minimize their exposure to MERS by avoiding South Korea altogether. By mid-June of 2015, net bookings on flights to South Korea from mainland China were 75% lower than bookings for a comparable period the previous year.179 Net flight bookings from Hong Kong were down 101%, meaning that more Hong Kongers cancelled existing reservations than booked new ones.180 Public transportation remained open during the MERS outbreak, albeit with less ridership. At the start of the outbreak, bus ridership in Seoul fell by 20.5%, while subway ridership was off by 23.6%.181 Subway cars and airplane cabins were disinfected by workers in protective facemasks.182 Even when disinfected, crowded buses and subway cars required passengers to share close quarters. A website aimed at English-speakers in South Korea suggested wear- ing protective facemasks while riding public trans- portation, and advised readers to avoid public transportation during rush hour.183 Nevertheless, rush hour subway cars in Seoul remained crowded, and few passengers wore facemasks.184 The 2015 MERS outbreak in South Korea offers a contemporary glimpse of what a deadly IDO may look like in an industrialized democracy. With no vaccine, public health authorities were forced to rely on social distancing and on quarantine and isolation measures in their efforts to contain the outbreak. The public voluntarily avoided other places where the virus could spread, but continued to use public trans- portation, although ridership temporarily dipped. In the event that service continues during an IDO, addi- tional protective measures will become critical. V. SCREENING AND PRESCREENING A. Definition of Public Screening and Prescreening of Passengers Screening, typically defined as “a physical exami- nation or nonintrusive methods of assessing whether cargo poses a threat to transportation security,”185 is a common security-related practice. The most well- known screening methods are those that occur at airports for air travel, but the security screening of passengers and cargo also occurs with vessels and other conveyance methods. Far less frequent are 173 Rececca Katz, Shifting the Culture of Quarantine (Sept. 15, 2015), bush.tamu.edu/scowcroft/papers/katz/ Katz%20Paper%20Final%20Publication%20Copy.pdf. 174 Id. 175 Jack Kim & Ju-min Park, WHO Team Urges South Korea to Reopen Schools as More Close in MERS Crisis, reuTers, (Jun. 10, 2015), www.reuters.com/article/us- health-mers-southkorea-idUSKBN0OQ0AY20150610. 176 Id. 177 Jeyup S. Kwaak, South Korea MERS Outbreak Brings Focus on Samsung Hospital, waLL sT. J., (June 18, 2015), www.wsj.com/articles/south-korea-mers-outbreak- highlights-failings-of-samsung-medical-center-1434616106. To prevent the virus from spreading further inside the hos- pital, the Samsung Medical Center restricted the number of visitors, and took fewer non-MERS patients. Id. 178 David Fickling, Rose Kim, & Clement Tan, bLOOm- berg, Koreans Find Deep Online Discounts with MERS Keeping People at Home, (Jun. 14, 2015), www.bloomberg. com/news/articles/2015-06-14/koreans-get-80-off-armani- online-as-mers-deters-outings. 179 Id. 180 Id. 181 Ridership in Seoul Dips Amid MERS Outbreak, KBS World Radio, (Jun. 17, 2015), rki.kbs.co.kr/english/ news/news_Dm_detail.htm?lang=e&id=Dm&No=111353 &current_page=109. 182 Justin McCurry, South Korea Declares ‘War’ on MERS Virus as Death Toll Rises, guardIan newsPaPer, (Jun. 5, 2015), https://www.theguardian.com/world/2015/jun/05/ south-korea-declares-war-on-mers-virus-as-death- toll-rises. 183 Hyunwoo Park, MERS in South Korea: Questions and Answers, 9KOrea, (Jun. 5, 2015), www.9korea.com/ articles/mers-in-south-korea-questions-and-answers/. 184 Brian Padden, Despite MERS Outbreak, Normal Life Goes On in Seoul, vOIce Of amerIca, (Jun. 9, 2015), www.voanews.com/a/mers-south-korea-another- death/2813146.html. 185 49 U.S.C. § 44901(g)(5). Although this definition specifies cargo, the Under Secretary of Transportation for Security is also statutorily obligated to provide “screening of all passengers” as well. 49 U.S.C. § 44901(a).

21 screenings that occur in transportation settings for health and communicable disease concerns. These screenings, which are also nonintrusive,186 can occur at air, sea, and land entries. Transit-related health screenings have been implemented during outbreaks of communicable diseases such as Severe Acute Respiratory Syndrome (SARS), and, in the United States, during the 2014–2015 Ebola outbreak. Prescreening differs from screening in that it typically occurs prior to passengers even entering a boarding area and involves information on specific travelers. Prescreening is typically done for security reasons at air and sea ports of entry. For example, CBP uses different systems to “capture personal identity and travel information on international travelers (both citizens and noncitizens) from passenger manifests provided by air carriers and vessel operators.”187 For the purposes of both border and transportation security, CBP checks that infor- mation prior to departure against several terrorist watchlists.188 The TSA has this responsibility for domestic flights.189 Prescreening for health concerns is more limited; currently the DNB list is one of few widespread systems in place to prescreen passen- gers for disease. Both screening and prescreening for PHEs or IDOs are uncommon and would likely prove chal- lenging to implement during an outbreak in a trans- portation setting. If such measures were needed, they would likely be implemented at POEs (as has been done with Ebola) or mass passenger transit. Both are discussed briefly below. 1. Port/Point of Entry, or “POE” A POE is a designated place at which an alien may apply for admission into the United States.190 There are a total of 328 POEs throughout the coun- try, including air, sea, and land entries.191 Although POEs are generally attended by CBP personnel, the CDC has authority and responsibility for operating quarantine stations located at 20 POEs, and can detain, medically examine, or conditionally release individuals at POEs who are reasonably believed to be carrying a communicable disease of public health significance.192 2. Public Transit Public transit does not typically use public screen- ing or prescreening methods, and it presents a significant challenge to do so. Public transit is “designed and must operate as an open system with multiple points of entry and exit [;]” in addition, “the volume of rail and transit passengers [ … ] precludes the imposition of anything approaching the rigorous and costly security procedures now in effect at commercial airports.”193 Although screenings are present for larger modes of transportation—such as airplanes and vessels—the smaller, quicker, and supposedly more accessible nature of public transit would not be conducive to extensive screening in a PHE or IDO.194 B. Screening In a declared emergency or PHE, governors and state health officials will have broad powers to respond to the emergency, and those powers will likely encompass establishing screening checkpoints at state borders and within the states. Transporta- tion agencies may have a broad duty to protect the health and welfare of their passengers. The follow- ing discussion highlights statutes from which an implied power to create screening measures and checkpoints may be inferred. 1. State Powers to Screen/Set Screening Checkpoints a) Governors’ Powers In a declared emergency or PHE, governors have power to control the assembly of people; conduct investigations and surveillance of communicable diseases, which can involve conducting or ordering inspections of places suspected of being a public health threat; control traffic; and order evacuation 192 See, e.g., 42 U.S.C. § 265. The CDC’s Division of Global Migration and Quarantine may also implement interstate and foreign quarantine measures at those POEs. For further discussion, see Chapter 2. 193 Brian Michael Jenkins, Selective Screening of Rail Passengers 1, Mineta Transportation Institute, (Feb. 2007), http://transweb.sjsu.edu/MTIportal/research/publications/ documents/06-07/pdf/MTI-06-07.pdf. 194 Nonetheless, the Notice of Proposed Rulemaking expands potential federal health screening to include rail- way stations and bus terminals, in addition to “other loca- tions where individuals may gather to engage in interstate travel.” Health and Human Services Department, Control of Communicable Diseases, 81 Fed. Reg. 54,229, 54,310 (proposed Aug. 15, 2016) (to be codified 42 C.F.R. §§ 70, 71). 186 These are typically visual inspections and questions about where an individual has been to or is traveling from, and temperature readings. The August 2016 Notice of Proposed Rulemaking seeks to codify these measures. See Department of Health and Human Services, Control of Communicable Diseases, 81 Fed. Reg. 54,229 (proposed Aug. 15, 2016) (to be codified 42 C.F.R. 70, 71). 187 Bart Elias and William Krouse, Terrorist Watchlist Checks and Air Passenger Prescreenings 5, Congressional Research Service, (Dec. 30, 2009), available at https:// www.fas.org/sgp/crs/homesec/RL33645.pdf. 188 Id. 189 Id. at 6. 190 22 C.F.R. § 40.1. 191 See U.S. Customs and Border Protection (CBP), Ports of Entry, https://www.cbp.gov/border-security/ports- entry (last visited Jun. 23, 2016).

22 of areas that are deemed not safe.195 In effect, these powers can control intrastate movement. Most states’ broad grant of powers include the ability to suspend rules, statutes, or regulations.196 Furthermore, during a declared state of emer- gency/PHE, most states give the governor the power to respond as “necessary to promote and secure the safety and protection of the civilian population.”197 This may include requiring individuals to “submit to medical examination or testing.”198 Such powers likely encompass noninvasive measures, such as checkpoints for screening, at POEs into the state or at public transportation hubs. b) State Health Officials’ Powers Like governors, in a declared PHE, health offi- cials, health departments, and boards of health have “the authority to investigate and control the causes of epidemic, infectious and other disease affecting the public health,” and in doing so may “exercise such physical control over property and individuals as the department may find necessary for the protec- tion of the public health.”199 Such “control” over indi- viduals could include screening and prescreening at transit centers. Although not transit-specific, South Dakota allows prescribed screening of the general population and high-risk segments of the general population through testing for communicable diseases,200 which can include any disease or condi- tion subject to a declared PHE.201 Though screening is rarely specified, many states allow for state health officials to “adopt rules and regulations necessary to carry out” the provisions of their PHE powers.202 In rare cases, a state, such as Oregon, may have provisions that allow for the creation and use of “diagnostic and treatment proto- cols to respond to the public health emergency” after consultation with “appropriate medical experts.”203 Screening measures would almost certainly fall under this statute’s allowable “protocols.” In addi- tion, the general duties of a state health official would likely allow for such measures when reason- ably necessary. c) State Transit Authorities or Transportation Departments Although states do not have specific statutes about public health screening for transportation/ transit agencies, some states have more specific stat- utes that address transportation facilities. For exam- ple, in Louisiana, state officials cannot be prohibited from inspecting facilities, including transportation facilities, where a communicable disease either exists or is suspected to exist.204 Rhode Island health officials may also subject vessels to examination.205 Many states, such as West Virginia,206 Minnesota,207 Oregon,208 and South Dakota,209 provide statutory guidance for railroads or common carriers. Minneso- ta’s statute is typical, stating: When necessary the [health] commissioner may [ ….. ] board any conveyance used by [common] carriers to inspect the same and, if such conveyance be found infected, may detain the same and isolate and quarantine any or all persons found thereon, with their luggage, until all danger of communication of disease therefrom is removed.210 200 S.D. cOdIfIed Laws § 34-22-11 (2016). The statute encourages participation from the public. 201 S.D. cOdIfIed Laws § 34-22-1 (2016). 202 Kan. sTaT. ann. § 65-101 (2016). 203 Or. rev. sTaT. § 433.443 (2016). Similarly, the Massachusetts health commissioner “may establish proce- dures to be followed during such emergency to insure the continuation of essential public health services and the enforcement of the same.” mass. gen. Laws ch. 17 § 2A (2016). 204 LA. sTaT. ann. § 29:769A. 205 R.I. gen. Laws § 23-9-3 (2016). 206 W. va. cOde, § 16-3-3 (2016). 207 mInn. sTaT. ann. § 144.14 (2016). 208 Or. rev. sTaT. § 433.216 (2016). 209 S.D. cOdIfIed Laws § 34-22-1.1 (2016). 210 mInn. sTaT. ann. § 144.14 (2016). 195 See, e.g., Or. rev. sTaT. § 433.441 (3) (“During a public health emergency, the Governor may: (a) Close, order the evacuation of or the decontamination of any facility the Governor has reasonable cause to believe may endanger the public health. (b) Regulate or restrict by any means necessary the use, sale or distribution of food, fuel, medical supplies, medicines or other goods and services. (c) Pre- scribe modes of transportation, routes and destinations required for the evacuation of individuals or the provision of emergency services. (d) Control or limit entry into, exit from, movement within and the occupancy of premises in any public area subject to or threatened by a public health emergency if such actions are reasonable and necessary to respond to the public health emergency.”). 196 See, e.g., mOnT. cOde ann. § 10-3-104 (2) “In addition to any other powers conferred upon the governor by law, the governor may: (a) suspend the provisions of any regu- latory statute prescribing the procedures for conduct of state business or orders or rules of any state agency if the strict compliance with the provisions of any statute, order, or rule would in any way prevent, hinder, or delay neces- sary action in coping with the emergency or disaster;”); See also, IdahO cOde § 46-1008 (5)(a) (2016). 197 aLa. cOde § 31-9-8 (2016); Or. rev. sTaT. § 433.441 (The governor may “[t]ake any other action that may be nec- essary for the management of resources, or to protect the public during a public health emergency”); R.I. gen. Laws § 30-15-9 (13) (2016) (The governor may “[d]o all other things necessary to effectively cope with disasters in the state not inconsistent with other provisions of law;”); IOwa cOde § 29C.3 (The governor may prohibit “[s]uch other activities as the governor reasonably believes should be prohibited to help maintain life, health, property, or the public peace.”). 198 md. cOde, Pub. safeTy, § 14-3A-03 (2016). 199 mIss. cOde ann. § 41-23-5 (2016). For additional examples, see also 20 ILL. cOmP. sTaT. 2305/2 (2016); N.J. sTaT. ann. § 26:13-9 (2016); Kan. sTaT. ann. § 65-101 (2016); Ky. rev. sTaT. ann. § 214.020 (2016).

23 Inspection statutes such as this one may, in effect, provide the authority for screening during an IDO. 2. Federal Powers to Screen Passengers Specific laws address federal powers to screen certain forms of transportation, primarily air travel. For example, the Under Secretary of Transportation for Security’s responsibility to screen all passengers and property carried aboard a passenger aircraft211 forms the basis for the security procedures at airports. In addition, federal powers exist to screen passengers at POEs. In an IDO, these screening procedures may provide guidance for potential screening procedures that could be implemented during a PHE. a) Points of Entry Screening and Monitoring At U.S. POEs, screening may occur in one of two settings: either through routine screening by CBP, or through the CDC’s quarantine stations. The CBP personnel perform tasks such as checking travel and immigration documents; inspecting luggage and cargo for contraband or prohibited items; monitor- ing trade and commerce activities; and conducting surveillance illegal border crossings.212 In addition to the CDC’s operation of 20 quaran- tine stations at select POEs,213 the Division of Global Migration and Quarantine can detain, medically examine, or conditionally release individuals at POEs who are reasonably believed to be carrying a communicable disease of public health significance. These powers provided the authority for additional screening measures in the fall of 2014, when the CDC and DHS initiated new Ebola screening measures at five major airports.214 b) World Health Organization Guidance on POEs Similar to the CDC’s quarantine stations, the WHO’s International Health Regulations require signatory countries to designate international airports, ports, or ground crossings that will serve as POEs to handle travelers during PHEs,215 and to limit entry to those designated points. Limiting POEs during a PHE will minimize the risk of the international spread of disease.216 Following the 2009 H1N1 influenza, which it designated a PHE of international concern, WHO sought to strengthen countries’ PHE preparedness by requiring PHE contingency plans for each POE that emphasized surveillance, response, communications, and coordi- nation among many different areas of operation, such as transportation, treatment, isolation, diagno- sis, quarantine, conveyance inspection, vector control, and disinfection, among others.217 WHO guidance also emphasizes the need for planned coordination among different key agencies and partners such as hospitals and similar facilities, public health author- ities, transportation, air and maritime entities, and emergency operation centers.218 c) Centers for Disease Control, Monitoring of Movement for Persons Potentially Exposed to Infectious Disease In addition to many of its public health missions, the CDC, during a PHE or IDO, will release interim guidance for responding to the disease with best practices based on known information. During the 2014 Ebola outbreak, the CDC issued interim guid- ance on “Monitoring and Movement of Persons with Potential Ebola Virus Exposure.”219 The guidance was updated multiple times during the outbreak to include new information and revised recommenda- tions. Such interim guidance can serve as the basis for transportation policy or protocols implementa- tion during a PHE or an IDO, particularly when considering screening measures. 211 49 U.S.C. § 44901. 212 U.S. cusTOms and bOrder PrOTecTIOn, Operations at Ports of Entry, available at https://www.cbp.gov/border- security/ports-entry/operations. Under the Immigration and Nationality Act and the Public Health Service Act, the Secretary of Health and Human Services enforces regulations for the medical examination of aliens seeking admission into the United States. Centers for Disease Control and Prevention (CDC), Medical Examination of Immigrants and Refugees, http://www.cdc.gov/immigrant refugeehealth/exams/medical-examination.html (last visited Jun. 23, 2016). 213 42 C.F.R § 70–71. 214 The White House Office of Communications, Five U.S. Airports are Enacting New Screening Measures to Protect Against Ebola, White House Blog (2014), https:// obamawhitehouse.archives.gov/blog/2014/10/08/five-us- airports-are-enacting-new-screening-measures-protect- against-ebola (last visited February 5, 2017). 215 International Health Regulations (IHR) Brief No. 3, Points of Entry under the IHR (2005), http://www.who.int/ ihr/ihr_brief_no_3_en.pdf. IHR defines “points of entry” as “a passage for international entry or exit of travelers, baggage, cargo, containers, conveyances, goods and postal parcels, as well as agencies and areas providing services to them on entry or exit.” Id. 216 Id. 217 International Health Regulations, A Guide for Public Health Emergency Contingency Planning at Designated Points of Entry, pp. 5–6 (2012), http://www.wpro.who.int/ emerging_diseases/documents/PHECP_Guide_web.pdf. 218 Id. at 18–20. 219 Centers for Disease Control and Prevention, Notes on the Interim Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure (updated 2014), http://www.cdc.gov/vhf/ebola/exposure/monitoring- and-movement-of-persons-with-exposure.html.

24 (1) Proposed New CDC Rules for Domestic and Foreign Quarantine Regulations220 As of August 2016, HHS and the CDC announced a proposed rulemaking to amend current interstate and foreign quarantine regulations. The proposed revi- sions would update current regulations in light of recent disease outbreaks, and “enhance HHS/CDC’s ability to prevent the further importation and spread of communicable diseases into the United States and interstate by clarifying and providing greater trans- parency regarding its response capabilities and prac- tices.”221 A critical component of that transparency is in codifying noninvasive screening procedures.222 In addi- tion, the proposed revisions add sections that would allow the CDC to conduct these screenings at “airports, seaports, railway stations, bus terminals, and other locations where individuals may gather to engage in interstate travel.”223 Such screenings could include observation, noninvasive procedures, questioning of travelers, and review of travel documents and other available records to determine the individual’s health status and potential public health risk to others.224 Notably, the proposed rulemaking states that “in expanding the screenings to trains and buses, HHS/ CDC believes that the rationale for airport security screenings may be extended to these other forms of transportation because of the similar administrative or special governmental need in preventing inter- state communicable disease spread.”225 Furthermore, “HHS/CDC intends for this section to apply broadly to all circumstances where individuals may queue with other travelers,” and that “an individual’s will- ingness to be screened may be inferred from his or her queuing with other travelers.”227 These proposed revisions provide insight into the direction of transportation and federal public health screenings. 3. Case Study: Andrew Speaker and Drug-Resistant Tuberculosis The ability to detect and detain passengers with infectious or communicable disease is critical to controlling a potential outbreak and maintaining public trust in common carrier transportation. Even with proper screening protocols in place, it can be difficult to control travelers. The 2007 case of Andrew Speaker led to a federal reexamination of powers to control interstate travelers. Andrew Speaker, a U.S. citizen diagnosed with extensively drug-resistant TB, flew overseas despite being told by U.S. public health officials not to do so.228 Speaker entered a number of countries in Europe, flew on seven separate airplanes, and entered the United States through an entry point in Canada, all while the CDC was trying to detain him in the United States and prevent such travel.229 After he returned to the United States, the CDC issued an involuntary quarantine order for Speaker, using its authority under the Public Health Service Act. The case was marked by a seeming lack of communication between Speaker, local and state health officials, and the CDC. There were discrepan- cies related to whether Speaker was contagious; whether he was permitted to leave the country; and which level of government (local, state, or federal) had authority. Speaker purported not to receive explicit answers to these questions, and made the assumption his travel was not restricted.230 Insufficient coordination among local, state, and federal agencies contributed to not detaining Speaker sooner. Among federal agencies, communi- cation challenges occurred between the CDC, CBP, and the TSA. Soon after Speaker had left the coun- try, officials at the CDC told the CBP of the public health threat posed by Speaker, although TSA was not made aware until at least two days later.231 As a result, Speaker was not added to the No Fly List (the only flight-restriction list available at the time for airlines) until after he had already returned to the country.232 220 See Health and Human Services Department, Control of Communicable Diseases, 81 Fed. Reg. 54,229 (Aug. 15, 2016) (to be codified at 42 C.F.R. 70, 71). 221 Id. at 54,231. 222 Id. The Proposed Rule defines “non-invasive” as “procedures conducted by an authorized health worker or other individual with suitable training and includes the visual examination of the ear, nose, and mouth; tempera- ture assessments using an ear, oral, or cutaneous or non- contact thermometer or thermal imaging; auscultation; external palpation; external measurement of blood pres- sure; and other procedures not involving the puncture or incision of the skin or insertion of an instrument or foreign material into the body or a body cavity, except the ear, nose, or mouth.” Id. at 54,241. 223 Id. at 54,310 (proposed § 70.10). 224 Id. 225 Id. at 54,244. 226 Id. 227 Id. 228 Kathleen Swendimen & Nancy Lee Jones, Extensively Drug-Resistant Tuberculosis (XDR-TB): Emerging Public Health Threats and Quarantine and Isolation, 2, Congres- sional Research Services, (2010). 229 Id. at 3. 230 Vikki Valentine, A Timeline of Andrew Speaker’s Infection, NPR (June 06, 2007), http://www.npr.org/news/ specials/tb/. 231 Videoclip: Tuberculosis Incident Response: Hearing Before the H. Comm. on Homeland Security, 110th Congress (Jun. 6, 2007), https://www.c-span.org/video/?198495-1/ tuberculosis-incident-response. 232 Id. at 04:02.

25 Federal agencies were also navigating the novelty of the situation and lack of clear guidance, and the need for greater awareness of policies and proce- dures, which led to the delayed placement of Speaker on the No Fly List.233 Even so, a nationwide border alert was placed on Speaker during his travels through other means, though a border patrol agent let Speaker cross back into the United States with- out notice.234 The Speaker incident resulted in the creation of the DNB list, which places federal air travel restric- tions on people who have communicable diseases that constitute public health threats.235 People on the list cannot be issued boarding passes from airlines.236 The list provides a centralized mecha- nism to control the spread of public health threats that does not rely on other lists or reporting mecha- nisms, and provides clear guidance to federal agen- cies regarding their roles in controlling the spread of a communicable disease, at least in one mode of interstate travel. C. Prescreening of Passengers Prescreening is distinguished from screening in that it typically occurs prior to individuals physically presenting at transit location. Prescreening at the federal level involves collecting information about an individual to ensure information matches or to prevent individuals from being able to board trans- portation and cross state or national lines. This is usually done in a security context; however, although rare, in the public health context, such gathered information may be used to prevent individuals from traveling to control the spread of a disease. 1. Federal Powers to Prescreen Passengers At air and sea POEs, CBP uses different systems to “capture personal identity and travel information on international travelers (both citizens and nonciti- zens) from passenger manifests provided by air carriers and vessel operators.”237 Such information is then checked against several terrorist watchlists.238 Domestically, the TSA has this responsibility; a simi- lar prescreening is done with passengers and crew who are to be carried aboard a cruise ship.239 a) Do Not Board List The DNB list “enables domestic and international health officials to request that persons with commu- nicable diseases who meet specific criteria and pose a serious threat to the public be restricted from boarding commercial aircraft” departing from or arriving in the United States.”240 A public health analogue to the No Fly List, the DNB list began in June 2007.241 The DNB list includes U.S. citizens as well as foreign nationals, and currently only applies to commercial aircraft.242 Usually, local and state health officials, who detect individuals with certain diseases through local disease surveillance and reporting requirements, contact the CDC to initiate an individual’s placement on the list. 2. State Powers to Prescreen Effective transportation prescreening at the state level may require integration of disease surveillance and reporting infrastructure with transportation information systems in a way that most states do not have. All states’ public health infrastructures include biosurveillance and disease reporting requirements that allow for the monitoring of speci- fied communicable diseases.243 This information is often used to monitor the spread of infectious diseases, and in some cases, to monitor individuals who may travel with a disease (typically TB). Though this health reporting and tracking infrastructure 233 Id. at 05:15. 234 Id. at 16:48. 235 cenTers fOr dIsease cOnTrOL and PrevenTIOn, About Quarantine and Isolation, http://www.cdc.gov/quarantine/ quarantineisolation.html (last updated Aug. 28, 2014). 236 cenTers fOr dIsease cOnTrOL and PrevenTIOn, Ques- tions and Answers about the Federal Register Notice Criteria for Recommending Federal Travel Restrictions for Public Health Purposes, Including for Viral Hemor- rhagic Fevers, http://www.cdc.gov/quarantine/qas-frn- travel-restriction.html (last updated March 27, 2015). 237 Bart Elias & William Krouse, Terrorist Watchlist Checks and Air Passenger Prescreening, 5 Congressional Research Service, (Dec. 30, 2009), https://www.fas.org/sgp/ crs/homesec/RL33645.pdf. 238 Id. 239 Id. at 9–10; see also Intelligence Reform and Ter- rorism Prevention Act of 2004 Pub. L. No. 108-458, 118 Stat. 3638. 240 Jared Cole, Federal and State Quarantine Isolation Authority, Congressional Research Service, (2014), https:// www.fas.org/sgp/crs/misc/RL33201.pdf. 241 The Do Not Board list was authorized by the Aviation and Transportation Security Act of 2001, Pub. L. No. 107- 71, 115 Stat. 597 (2001). It is managed jointed by the DHS, Centers for Disease Control and Prevention, and the Transportation Security Agency. 242 The revisions in the Notice of Proposed Rulemaking would expand this to other forms of transportation as well. See Health and Human Services Department, Control of Communicable Diseases, 81 Fed. Reg. 54,229 (proposed Aug. 15, 2016) (to be codified 42 C.F.R. 70, 71). 243 Biosurveillance is typically defined as “the process of gathering, integrating, interpreting, and communicating essential information related to all-hazards threats or dis- ease activity affecting human […] health to achieve early detection and warning [ …. ]” The White House, National Strategy for Biosurveillance 2, July 2012. In practice, bio- surveillance may include technical detection systems, or data analysis to indicate disease outbreaks. Id.

26 exists within states, it would likely be difficult to successfully use the information to prescreen transit passengers on a large scale. In addition, the use of such information routinely may raise privacy concerns or potential conflicts with state and federal privacy laws, such as the Health Information Porta- bility and Accountability Act.244 Prescreening powers for both governors and state health officials remain largely implied. As with screening, a governor’s powers may reasonably extend to prescreening measures during a declared emergency/PHE. This power would most likely come from one of the broadly worded provisions, such as those granting the power to respond as “necessary to promote and secure the safety and protection of the civilian population.”245 No states specify a state health official’s power to prescreen individuals for travel; however, a state health official’s broad powers during a declared PHE could allow for setting up such a process. Although not specifically related to prescreening, a few states have passed statutes to make individual health information accessible during a PHE. For example, Illinois states that: To prevent the spread of a dangerously contagious or infec- tious disease, the Department, local boards of health, and local public health authorities shall have emergency access to medical or health information or records or data upon the condition that [they] shall protect the privacy and confiden- tiality of any medical or health information or records or data obtained pursuant to this Section in accordance with federal and State law.246 Illinois also states that its State Health Department “may develop and implement, in consultation with local public health authorities, a Statewide system for syndromic data collection through the access to interoperable networks, information exchanges, and databases”247 to be used to prevent and control disease. These statutes may allow for the emergency use of such information that could be used to create the equivalent of state-level transit DNB lists to control the spread of a disease during a declared emergency. Although these powers do not specifi- cally address prescreening procedures, the broad powers can likely be used to set them up. D. Additional Legal Issues with Screening and Prescreening Practices Screening and prescreening measures can raise a number of concerns, including Fourth Amend- ment issues, and the ability to screen employees in addition to passengers. Concerns regarding privacy and discrimination affect the legitimacy of screen- ing programs. 1. The Fourth Amendment: Searches in the Public Health Context The Fourth Amendment248 of the U.S. Constitu- tion prohibits unreasonable searches and seizures.249 Typical security screening measures used in a trans- portation setting, such as airline screening, may constitute an administrative search;250 screening and prescreening practices for PHEs or IDOs may likely be considered an administrative search as well.251 For administrative searches, courts have held that consent is not necessary as long as the search is done pursuant to a valid statute.252 When implemented, screening and prescreening measures would likely fall into this category, as even without a declared state of emergency, states allow health offi- cials to conduct inspections without a warrant when they believe there is a significant or imminent threat to public health.253 248 U.S. cOnsT. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 249 U.S. cOnsT. amend. IV. 250 See, e.g. United States v. Aukai, 497 F.3d 955, 959 n.2 (9th Cir. 2007), and Id. at 960 stating “airport screening searches [ … ] are constitutionally reasonable administra- tive searches because they are ‘conducted as part of a gen- eral regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijack- ings.’” (citing United States v. Davis, 482 F.2d 893, 908 (9th Cir.1973)). 251 Davis, 482 F. 2d at 909, n.42. 252 Aukai, 497 F.3d at 960. For more on administrative searches generally, see New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987); United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972). 253 See, e. g., N.M sTaT. ann. § 24-1-19 (2016) (“Whenever it reasonably appears to an inspection officer that there may be a condition, arising under the laws he is autho- rized to enforce and imminently dangerous to health and safety, the detection or correction of which requires imme- diate access, without prior notice, to premises for purposes of inspectorial search, and if consent to such search is refused or cannot be promptly obtained, the inspection officer may make an emergency inspectorial search of the premises without an inspection order.”). 244 Pub. L. No. 104-191, 110 Stat. 1936 (1996). 245 aLa. cOde § 31-9-8 (2016); Or. rev. sTaT. § 433.441 (2016) (The governor may “take any other action that may be necessary for the management of resources, or to pro- tect the public during a public health emergency”); R.I. gen. Laws § 30-15-9 (13) (2016) (The governor may “[d]o all other things necessary to effectively cope with disasters in the state not inconsistent with other provisions of law”); IOwa cOde § 29C.3 (2016) (The governor may prohibit “[s] uch other activities as the governor reasonably believes should be prohibited to help maintain life, health, property, or the public peace.”). 246 20 ILL. cOmP. sTaT. 2305/2 (2016). 247 Id.

27 When conducted for a PHE or IDO, screening and prescreening measures may raise concerns about civil liberties; however, the special governmental need in preventing terrorism and promoting safety and security will often outweigh these concerns.254 As long as the screenings are reasonable and serve a compelling government interest, courts are reluc- tant to deny them.255 Nonetheless, such measures will likely be unpopular. Using methods that are the least invasive will provide greater cooperation and present fewer challenges. 2. Screening for Department/Agency Employees During a PHE or IDO, it may be necessary to screen employees as well as passengers. Although not common practice for most transit employees, there are some circumstances outside of PHEs in which public health officials may require individu- als in certain work places to submit to mandatory screenings or examinations for certain diseases. In California, for example, no person may be employed in connection with a park, playground, recreational center, or recreational beach, if in contact with chil- dren or food, unless the person has a certificate from within the last two years showing that the individ- ual is free from communicable TB.256 California also requires TB screening for all prison employees who interact with inmates.257 These are more intrusive medical examinations rather than screenings; however, it is possible the same justification for such measures (ensuring those who have contact with certain populations do not spread disease) could apply during a PHE to other employees, such as transit workers. Similarly, under the Americans with Disabilities Act (ADA),258 an employer can request a medical examination if the request is made after a condi- tional job offer, and not as a requirement for an offer, and if the request applies to all employees in the same category.259 To request examination after employment has started, the request must be job related and a necessity.260 Although not typically used in this way, such laws might provide a basis for requiring employees, particularly those who interact with the public, to undergo screenings before resuming work duties during a declared PHE or IDO. E. International Case Study: Severe Acute Respiratory Syndrome Pandemic In 2003, an outbreak of SARS focused public health and transportation officials on transporta- tion screening and prescreening practices for all respiratory illnesses. SARS is a deadly virus that is not contagious while infected individuals are asymp- tomatic, much like Ebola.261 The outbreak, which appears to have started in Vietnam and Hong Kong, spread rapidly to other countries, including China, Singapore, and Canada.262 The rapid spread led WHO to recommend that affected areas implement airline passenger depar- ture screenings to detect symptoms of the illness.263 Canada, experiencing a limited outbreak in Toronto, screened inbound and outbound passengers by requiring them to complete short health alert notices asking about potential symptoms.264 Passengers that responded “yes” to some of the pertinent questions underwent a secondary screening with a screening nurse, which included a more in-depth question- naire, and a symptoms and temperature check.265 Based on the results, passengers were released or taken to a hospital for additional evaluation.266 Later review of the effectiveness of Canada’s SARS screening measures led public health officials to conclude that “the possibility of detecting a danger- ous infectious disease at border POEs is challenging. Given the relatively short travel time, detecting persons at the border who are incubating any of the known infectious disease pathogens is unlikely.”267 Furthermore, they stated that although “easily visi- ble measures, such as thermal scanning machines, may generate a sense of confidence or reassurance” in the public, “in-country, acute care facilities (hospi- tals, clinics, and physicians’ offices) are the de facto 254 Id. 255 Daniel S. Harawa, Comment, The Post-TSA Airport: A Constitution Free Zone? 41 PePP. L. rev. 1, 20-51 (2013). 256 caL. Pub. res. cOde § 5163 (2016). 257 caL. PenaL cOde § 6007 (2016). 258 Pub. L. No. 101-336, 104 Stat. 327 (1990). 259 42 U.S.C. § 12112. 260 Id. The ADA does not override state or local laws designed to protect public health and safety, except when such laws conflict with the ADA requirements. 261 Roy M. Anderson, Christophe Fraser, Azra C. Ghani, Christl A. Donnelly, Steven Riley, Neil M. Ferguson, Gabriel M. Leung, T. H. Lam, & Anthony J. Hedley, Epide- miology, Transmission Dynamics, and Control of SARS: the 2002–2003 Epidemic, 359 PhILOs. Trans. rOyaL sOc. LOnd. bIOL scI. 1091–105 (July 29, 2004). 262 Ronald K. St. John, Arlene King, Dick de Jong, Margaret Bodie-Collins, Susan G. Squires, & Theresa W.S. Tam, Border Screening for SARS, 11 emergIng Inf. dIs. 6 (2005). 263 Id. 264 Id. 265 Id. 266 Id. 267 Id. at 6.