Prime Minister Justin Trudeau recently announced the release of a nationwide contact tracing app. He remarked that it would be “something you can just download and forget about.”
In the wake of demonstrations in response to the killing of George Floyd, the Minneapolis Public Safety Commissioner stated that the police had begun tracking down protesters through a process he analogized to “contact tracing.” Whether or not contact tracing apps are or will be used to locate demonstrators, it is clear that the barrier between public health officers and police officers is permeable.
Blurring these lines is dangerous on multiple fronts. New surveillance technologies aimed at combating COVID-19 could be co-opted as a foothold to strengthen the surveillance state. In turn, skepticism of state-promoted contact tracing technologies may lead to insufficient adoption of them by the public, undermining their effectiveness and taking away a potentially important tool to fight the pandemic.
This situation is not the first time that public health, privacy and law enforcement have collided. In the case of Vancouver Police Department vs. BC Centre for Excellence (BC-CfE) in HIV/AIDS, the Vancouver Police Department demanded private medical records from the BC-CfE in connection to an aggravated sexual assault case.
The implications of this request were massive. The BC-CfE has records on almost all known HIV-positive people in the province that include personal, demographic and even genetic information. Understandably, the BC-CfE resisted the request.
The B.C. provincial court held that society’s interest in protecting the confidentiality of the records outweighed the objectives of the police investigation as disclosure of patient and research information in furtherance of a criminal investigation would “erode the Centre’s ability to maintain a comprehensive program for HIV-Aids research and treatment. The benefits to society from that research are immeasurable.”
A similar argument could be made of any request to access data collected to fight COVID-19, such as data collected through contact tracing. It is not difficult to conclude that many people would refuse to voluntarily enrol in contact tracing apps like Alberta’s TraceTogether if they believed their information was not safe, as polling has suggested that privacy is a a significant concern with respect to such apps. Without buy-in from a critical mass of users, a contact tracing app would likely fail.
Yet legal arguments to protect our privacy through court proceedings are not enough in the post-COVID era. A broader structural framework to ensure privacy for health information is required.
Former Ontario Privacy Commissioner Dr. Ann Cavoukian developed a concept known as “privacy by design” in the late 1990s. Though many of the principles of this concept are geared toward the creation of information systems, they could well be applied to a data framework. The most pertinent foundational principles are as follows: the approach to privacy should be proactive rather than reactive; privacy should be the default setting and; transparency.
If properly crafted, a statute could make the government’s COVID-19 tracking efforts achieve privacy by design; it could ensure that any information collected for the purposes of COVID-19 surveillance be used only for health purposes, precluding use for any other purpose.
This would not only make privacy the default setting, but would also be a proactive approach, acting to prevent the state from engaging in violations of privacy, rather than attempting to reverse the damage in court after it has been done. Furthermore, a statute could ensure improved transparency by mandating that users be asked for permission each time before any identifiable data about them is used, informing them of the purpose of that use and then notifying them again once that information has been used.
New crisis solutions
The COVID-19 crisis is unprecedented, as are the measures we have collectively taken in response. We are all understandably keen to take whatever action is necessary to bring this virus to heel. Yet we must also remain vigilant.
Temporary impingement on rights and liberties all too often become permanent. As many have pointed out, this is not the last global pandemic nor, given the climate crisis, the last major catastrophe that will occur in our lifetimes.
The demand for increased bio-surveillance will grow in order to prevent this, and future pandemics. The Charter of Rights and Freedoms, of course, contains provisions protecting our privacy as well as our right to life, liberty and security of person. However, it is clear that in order to realize these rights, further action is needed to keep the realm of public health officers and police officers separate. Privacy and transparency need to become the default, not something that must be fought for in a courtroom after the fact.
The barrier between public health officers and police officers must stay intact. The challenges we face in the months and years ahead will not be easy to overcome, but we must face them with open eyes and to ensure we avoid an Orwellian pandemic in which we entirely lose control of our right to privacy.
Joven Narwal, Adjunct Professor at the UBC Allard School of Law, University of British Columbia , The Canadian Press