CDC Proposes Indefinite Detainment, Forced Vaccination and Unlimited Surveillance For Travelers TELL THE CDC NO WAY!

We have until October 14th, 2016 to give the CDC feedback on their proposed rule. Go to www.regulations.gov/comment?D=CDC-2016-0068-0001 and tell them what you think!

Continue reading the full synopsis by attorney Chiara King if you’d like a more in-depth understanding and analysis of why these newly proposed CDC regulations are dangerous to Americans and could lead to forced vaccination or permanent detention for all:

EXPANDED OVERVIEW OF CDC’s PROPOSED POLICE POWERS

CDC Proposes Indefinite Detainment, Forced Vaccination
and Unlimited Surveillance For Travelers
Introduction
On August 15, 2016, the Centers for Disease Control and Prevention (CDC) in the Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking (Proposed Rules, or Notice) to amend its quarantine regulations. These Proposed Rules are extraordinarily concerning, as they will permit the Federal government, through its executive agencies and their agents, to deprive law-abiding individuals of their liberty on the basis of being “warm to the touch” or appearing “obviously unwell.” In an unbelievable demonstration of authoritarian arrogance, HHS/CDC wants to perform mandatory public health screenings on any man, woman, or child who dares to exercise their freedom of movement by engaging in interstate travel via aircraft, train, or bus. Incredibly, HHS/CDC also seeks the ability to apprehend and indefinitely detain individuals on the basis of such screenings. These Proposed Rules are devoid of any meaningful protective mechanisms, and would therefore put every American traveler, even a child traveling alone, at risk of being treated like an enemy of the state and being catapulted into a legal no-man’s land of Federal custody and coerced medical treatment – all in the name of “public health.”

Current State of the Law
HHS/CDC is authorized by Federal statute, sections 361 and 362 of the Public Health Service Act (42 U.S.C. 264, 265), to promulgate regulations that, in the judgment of the Secretary of the HHS, are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the United States, or from one state to another. Section 361(a) authorizes the Secretary of HHS to promulgate and enforce regulations to prevent the spread of all communicable diseases that may affect human health, and includes such measures as fumigation, sanitation, animal destruction, and pest extermination. Section 361(b) authorizes the “apprehension, detention, or conditional release” of individuals for the purpose of preventing the introduction, transmission, and spread of certain specified “quarantinable” communicable diseases.

To qualify as “quarantinable,” a disease must be designated as such by an Executive Order of the President. Quarantinable diseases are currently limited to cholera, diphtheria, infectious tuberculosis (TB), plague, smallpox, yellow fever, viral hemorrhagic fevers (such as Marburg, Ebola, Lassa fever, and Crimean-Congo), severe acute respiratory syndromes, and influenza caused by novel or re-emergent influenza viruses that are causing, or have the potential to cause, a pandemic. See Executive Order 13295 (April 4, 2003), as amended by Executive Order 13375 (April 1, 2005), and Executive Order 13674 (July 31, 2014). For an interstate traveler to qualify for apprehension, examination, and detention under current law, health officials must reasonably believe that the individual is infected with a quarantinable communicable disease in a qualifying stage. “Qualifying stage” can mean in a communicable stage, or it can mean in “a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.” See 42 U.S.C. 264(d)(1-2). Health officials must also reasonably expect that the individual is moving or about to be moving between states, or constitutes a probable source of infection to others moving between states. Violation of regulations enacted under 42 U.S.C. 264 and 265 carry criminal sanctions, including imprisonment.

Mandatory Public Health Assessments
One of the most startling things HHS/CDC seeks to do under the Proposed Rules is to conduct mandatory public health risk assessments in every location where individuals “queue” with others who may be engaging in interstate travel. The sole legal justification HHS/CDC offers for this patently offensive idea is its belief that “administrative” searches at airports, which allow for warrantless searches of all carry-on luggage without individualized suspicion, should extend to the physical examination of members of the public for communicable diseases. These mandatory public health assessments will include examination of the ear, nose, and mouth; temperature assessment; thermal imaging; external palpation; and other so-called non-invasive procedures. Notably, the Proposed Rules do not require that these exams be performed by a licensed health care worker, but instead allow “another individual with suitable training” to suffice. HHS/CDC’s stated intent for these screenings is “to provide for mandatory public health risk assessment and management at ports or other locations where individuals may gather to engage in interstate traffic.” This wording explicitly includes train stations and bus depots, but the term “other locations” is vague enough to include other places where large numbers of interstate and/or international visitors congregate, perhaps even for recreation. HHS/CDC makes no mention of the dozens of potential complications involved in authorizing its agents to lay hands on the public, including but certainly not limited to: the examination of persons with autism or sensory processing disorders; religious objections to examination; language barriers leading to misunderstanding; children refusing or being asleep; how examiners would distinguish serious illnesses from cold viruses, sinus infections, and ordinary flu; and many other issues. The consequences of refusal may be inferred from the Notice’s citing of a case related to airport security, United States v. Herzbrun, which held “that a passenger consents to an airport security search by presenting himself/herself for boarding and that such consent may not be revoked by simply walking away.” 723 F.2d 773, 775 (11th Cir. 1984).

Under the Proposed Rules, individuals undergoing a mandatory public health assessment would be required to provide “contact tracing” information to the examining authorities, such as the individual’s U.S. and foreign addresses, telephone numbers, email addresses, current travel destination, health status, and history of travel. The precise definition of “health status” is not offered in the Notice, but it very likely would include vaccination status, as this information is already routinely collected in other high-volume health-care scenarios like emergency rooms. This contact tracing information will be collected during what HHS/CDC considers to be a simple administrative search, with no prerequisite justification of individualized suspicion, warrant, or probable cause being necessary; there is thus no discernible limit to how far public health agents could press in their pursuit of personal medical information. Just as standing in line at the airport implies consent for government agents to search one’s luggage, an individual’s mere presence in a particular location will imply consent to a mandatory public health assessment and invasive health-related questioning.

To “facilitate [the] identification of communicable diseases of public health concern,” the Proposed Rules introduce a new definition of “ill person.” That definition includes, but is not be limited to, having a measured temperature of 100.4 degrees Fahrenheit or greater, being warm to the touch, having glassy eyes, having a skin rash, having difficulty breathing or a persistent cough, going to the restroom numerous times, or simply being “obviously unwell.” Persons undergoing chemotherapy, or those with travel sickness, asthma, eczema, emphysema, weak bladders, or irritable bowel syndrome might therefore be at risk of being targeted as potential public health threats by overeager authorities.

The new definition of “ill person” also comes into play in HHS/CDC’s proposed rules about reporting requirements specifically applicable to aircraft operators. If finalized as proposed, the pilot in command of any commercial passenger flight would be required to report the occurrence of any death or ill person directly to HHS/CDC, either through the CDC Emergency Operations Center or through the destination airport’s quarantine station, at least one hour before the flight’s arrival. It bears repeating that the definition of “ill person” includes such vague criteria as being warm to the touch, going to the restroom numerous times, or simply being “obviously unwell.” One can only imagine the additional discomfort of being detained by authorities during travel because of a head cold, food poisoning, or even a severe migraine headache.

Apprehension
If an individual fails to pass the mandatory public health check, it is an extremely short trip to custodial apprehension under the Proposed Rules. The first requirement states “specific, articulable facts upon which a public health officer could reasonably draw the inference that an individual has been exposed, either directly or indirectly, to the infectious agent that causes a quarantinable communicable disease . . .” Note that this condition is written so loosely as to easily permit apprehension and detainment on the basis of rumor, lies, or mistaken identity, even in the total absence of physical symptoms. Second, the public health officer would need to reasonably believe that the individual is in a “qualifying stage” of the quarantinable disease in question. This sounds like a vaguely protective mechanism, but it most certainly is not.

In addition to meaning the communicable stage of a disease, “qualifying stage” can also mean the precommunicable stage of a quarantinable communicable disease, if the disease might be likely to cause a public health emergency if transmitted to other individuals. HHS/CDC seeks to define “public health emergency” as “any communicable disease event as determined by the CDC Director with either documented or significant potential for regional, national, or international communicable disease spread or that is highly likely to cause death or serious illness if not properly controlled . . .” Importantly, this definition of “public health emergency” has a rather subtle either/or component. To qualify as a public health emergency under the proposed definition, a disease must have either “documented or significant potential for regional, national, or international communicable disease spread” or it must be “highly likely to cause death or serious illness if not properly controlled.” In plain English, this means that HHS/CDC seeks to apprehend individuals on the basis of mere transmissibility of disease, regardless of the relative dangerousness (or non-dangerousness) of that disease. This proposed definition therefore effectively defeats the controlling statute’s intent of separating diseases by quarantinable (apprehendable) versus non-quarantinable (non-apprehendable) status. Indeed, this proposed definition of public health emergency explicitly encompasses “any communicable disease event,” rather than specifying a quarantinable communicable disease event. This, too, is in direct conflict with the controlling statute, which allows for custodial apprehension only on the basis of quarantinable communicable disease.

HHS/CDC seeks to define “apprehension” as “the temporary taking into custody of an individual or group for purposes of determining whether quarantine, isolation, or conditional release is warranted.” This means that, once an individual is apprehended, he or she will remain apprehended pending the issuance of a Federal order for quarantine, isolation, or conditional release, as deemed necessary by the overseeing public health officer. The apprehended individual is not free to leave, nor free to discontinue his or her discussion with the public health officer. In contrast to a criminal custodial apprehension situation, the individual apprehended in this public health scenario has neither the right to remain silent nor the right to obtain the advice of an attorney. In fact, HHS/CDC is silent as to an individual’s right to communicate with the outside world at all during apprehension.

The Notice states that HHS/CDC anticipates that any apprehension would last no more than 72 hours, but admits that the agencies have no present intention of putting a maximum apprehension period into the new Rules. This time period between apprehension and Federal order is roughly comparable to the period of time between a suspect being arrested and being charged in a criminal context, where a prosecutor is obligated to determine charges within a statutorily defined time period after arrest. In addition to HHS/CDC being free of any time-limiting criteria under the Proposed Rules, there is also no mention of where the apprehended individual would be kept while awaiting Federal orders, nor is there any mention of how a minor child would be treated in this scenario, specifically with respect to whether the child’s parents would be permitted to be present during an effectively indefinite period of apprehension.

The lack of stated maximum apprehension time is particularly troubling because there is no necessity in the Proposed Rules for a medical examination to take place prior to the issuance of a Federal order. It thus appears that an individual could easily remain in a prolonged period of apprehension prior to any confirmation whatsoever of infection with a quarantinable communicable disease. Such an individual may need to wait, indefinitely, for a Federal order for a medical examination to confirm or refute the presence of a quarantinable communicable disease. It is not difficult to imagine how this lack of accountability or uniformity in protocol could be abused by authorities.

HHS/CDC includes groups in its definition of “apprehension,” and also seeks the ability to issue Federal orders to groups. Although the Notice uses the example of individuals onboard a particular flight, it is clear that such orders would be applicable to larger groups of people: “[I]f all individuals are to be confined in a common location, the Federal order of quarantine may be posted in a conspicuous place viewable by all of the inhabitants of that location.” There is no stated upward limit to this quarantine protocol. Could HHS/CDC cordon off an entire city? How about an entire state? Could the entire nation be put in quarantine lockdown, if conspicuous enough notice is put on every government building and streetlight in the United States? These are, unfortunately, not silly questions, because the power that HHS/CDC seeks in the Proposed Rules is so broadly defined that limits to that power effectively do not exist. 

Federal Orders and “Agreements”
The Notice explicitly states certain things that can be accomplished by Federal order in the context of public health apprehension: medical examination, quarantine, isolation, and conditional release. Persons under a Federal order of isolation, quarantine, or conditional release for a quarantinable communicable disease may also be prohibited from traveling in interstate traffic unless they possess a written travel permit issued by HHS/CDC. Note: HHS/CDC seeks to change the definition of conditional release to “surveillance,” as defined elsewhere by Federal statute, to include public health supervision through in-person visits by a public health official or designee, telephone, or through electronic or internet-based monitoring. HHS/CDC further proposes a definition for “electronic or internet-based monitoring” that includes e-mail, SMS texts, video conference, webcam technologies, and wearable tracking technologies, among others.

The Proposed Rules seek to introduce the concept of an “agreement,” which is defined as an “agreement entered into between the CDC and an individual expressing agreement . . . that the individual will observe public health measures authorized under this part, as the CDC considers reasonably necessary to protect the public’s health, including quarantine, isolation, conditional release, medical examination, hospitalization, vaccination, and treatment.” Notably, however, “[An] individual’s agreement shall not be considered as a prerequisite to the exercise of the CDC’s authority under this part.” Intriguingly, this list of healthcare measures includes four things already subject to Federal order – quarantine, isolation, conditional release, and medical examination – and three newly mentioned healthcare measures: hospitalization, vaccination, and treatment. Because the Notice makes no attempt to separate these seven healthcare measures, the only reasonable interpretation of this section is that hospitalization, vaccination, and treatment may also be forced via Federal order, in the absence of an individual’s consent. It would be logical to assume that hospitalization, vaccination, and treatment could be merged into the term “conditional release,” were it not for the fact that HHS/CDC seeks to change the meaning of that term to “surveillance.”

HHS/CDC’s stated belief is that agreements are a “means of building trust with the individual.” However, in addition to the individual’s actual consent being unnecessary, the agreement will also require the individual to sign a statement that he or she is choosing to enter the agreement on a voluntary basis, without duress or coercion. It will include a section on Federal criminal penalties for the individual should he or she fail to abide by the agreement, or violate any Federal order, notwithstanding the existence or nonexistence of an agreement. In all likelihood, an individual signing his or her agreement to receive vaccines would be thinking that one or two shots are involved, when it’s more likely that the CDC would slip in a carte blanche agreement to receive any and all CDC-recommended vaccines. Anyone who doesn’t immediately realize the full ramifications of this requirement, and later balks, would be subject to Federal criminal prosecution for breaking the agreement.