Governor Baker’s Contact-Tracing Order

On November 2, Governor Baker signed COVID-19 Order No. 54 which, among other things, requires citizens to assist the state in corona virus contact tracing.

Section 6 of the order reads as follows: If a host or event venue is notified that an event attendee or event worker has tested positive for COVID-19, the event host or event venue must immediately notify the Local Board of Health in the city or town where the event took place. Hosts and event venues must assist the Department of Public Health and Local Boards of Health with contact tracing and case investigations, including, upon request, providing lists of attendees at social gatherings and their contact information. Event hosts and venues who fail to timely report positive cases or cooperate with contact tracing and case investigations may be subject to the penalties listed in Section 8.

According to Section 8,

Violation of the terms of this Order may result in a civil fine up to $500 per violation…to be assessed on any person, organization, or business responsible for organizing, hosting, or allowing a gathering conducted in violation of the Order.

The Governor’s office cites to the Civil Defense Act (St. 1950, c. 639, section 8) as authority for the contact-tracing order.

An argument could be made that the order violates the U.S. Constitution’s Fifth Amendment protection against self incrimination. The Fifth Amendment (applicable to the states through the 14th Amendment) prohibits the government from compelling a citizen to make statements that could leading to his or her prosecution.

The governor’s order seeks to side step the Fifth Amendment by expressly stating that the penalty for violating the order is a “civil fine up to $500″. Emphasis added. In other words, a person will not be criminally prosecuted for violating the order. Therefore, a citizen cannot invoke his or her constitutional protection against self incrimination.

However, the authority that the governor cites in making the order (i.e., St. 1950, c. 639, section 8) clearly states that violations are punishable by up to a year in jail. Thus, it is arguable that a person should be permitted to remain silent when asked for contact tracing information.

Hopefully the order will be successfully challenged in the near future.

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