A Coronavirus Order Requiring Businesses to Track Customers Is Challenged in Court

Customers Randy and Nancy Cree eat dinner in the dining room of the Chic-A-Dee Cafe In Topeka, Kan., Tuesday, May 5, 2020. Some booths are closed in order to maintain distance.

Customers Randy and Nancy Cree eat dinner in the dining room of the Chic-A-Dee Cafe In Topeka, Kan., Tuesday, May 5, 2020. Some booths are closed in order to maintain distance. AP Photo/Orlin Wagner

 

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Linn County, Kansas requires businesses that reopen amid the coronavirus outbreak to log their customers as a way to assist contact tracing efforts. A lawsuit alleges that’s unconstitutional.

Public health officials believe contact tracing will be essential to prevent the spread of coronavirus as states reopen their economies.

But measures enacted this month by one Kansas county to bolster contract tracing efforts face a legal challenge that asserts they are unconstitutional and violate the privacy rights of businesses and their patrons.  

The Linn County Health Department, in rural eastern Kansas, issued an order May 1 requiring businesses that reopen for in-store customers to keep logs of the people who visit. Banks, medical and law offices, day care facilities, restaurants and other businesses are all required to keep the logs, which must contain customers’ names and phone numbers, as well as the dates and times of their visits. The health department can request the logs at any point “for the purposes of contact tracing,” the order states.

Backed by the public interest law firm, the Kansas Justice Institute, a newspaper publisher and restaurant owner filed a lawsuit against the county health department, alleging the order violates their Fourth and Fourteenth Amendment rights.

“This order permits unreasonable, nonconsensual, suspicionless, and warrantless searches or seizures and violates the privacy rights of those required to be listed,” the lawsuit states.

The law firm has also filed for a temporary restraining order that would bar Linn County from enforcing the order. U.S. District Judge Holly Teeter has set a Friday motions hearing in the case.

Contact tracing is a method used by public health departments for years to stop the spread of disease. It requires investigators to track down each person who has come in contact with an infected person in order to isolate each contact for a period of time to monitor for symptoms.

States across the country are trying to hire contact tracers in droves to improve their abilities to track and slow the spread of the virus as they allow businesses to reopen. But the idea that businesses should be required to track all of their customers has been met with resistance. 

Gov. Laura Kelly weighed in Monday on the measure, saying it’s “going a little bit too far.”

“I don’t see us doing that,” Kelly told reporters. “My gut is that that’s an awful lot to ask of people.”

The state health department isn’t recommending local governments adopt these kind of requirements for businesses. But Lee Norman, secretary of the Kansas Department of Health and Environment, did note that if there is an outbreak, the information would be “terrifically helpful,” the Hutchinson News reported

New Orleans, which initially proposed requiring businesses to log patrons as part of its contact tracing strategy, appears to have backed off the proposal after it was met with resistance from the business community.

The Linn County lawsuit highlights the concern that patrons may have about such record keeping.

One of the plaintiffs in the case, Jackie Taylor, is the owner and publisher of the Linn County News.

As a reporter, Taylor often meets sources at the types of businesses listed in the order. The lawsuit states that she has begun limiting who she interacts with because she does not want her sources included on business logs.

The other plaintiff, Linda Jo Hisel, argues that as the owner of local restaurant Nana Jo’s, the order will place a significant burden on her business.

“If a customer does not wish to be listed, Ms. Hisel is in a quandary. She can refuse to serve the customer, at her financial peril, or disregard the compilation requirement and suffer a financial penalty,” the lawsuit states.

Failure to comply with the order is punishable by a $500 fine for each offense.

The Linn County Health Department referred inquiries about the order to the County Clerk, who could not be reached for comment Wednesday.

While Linn County’s order requires businesses to keep customer logs, Kansas City, Missouri has encouraged but not required the practice. Guidance issued by the city on restaurant reopenings strongly encourages restaurants “to maintain a log of all customers who spend more than 10 minutes seated at the establishment.” The guidance document indicates that the log records would be kept confidential and “only be used to aid efforts to notify customers and staff about potential COVID-19 exposure.”

Andrea Noble is a staff correspondent with Route Fifty.

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