By Ole Christiansen
The pandemic has caused many regulations and restrictions and some of them have raised a lot of concern in human rights discussions. One of these is the track & trace apps. By now, most countries have their own version. The apps track who you have been in contact with, which is why the apps are commonly referred to as contact tracing apps. Since the apps know who you have been in contact with, it can alert you if you have been in contact with someone who has tested positive for COVID-19. Likewise the app can alert anyone you have been in contact with, should you test positive. This pitch sounds very reasonable. It helps detect and limit the spread of the virus. However, there is another way to look at it. These apps are often developed with official government support. This means that a government-backed app is tracing you 24/7. They know where you are at all times. Is this in conflict with the right to privacy? That is the main basis of the debate.
“Human rights are key in shaping the pandemic response, both for the public health emergency and the broader impact on people’s lives and livelihoods. Human rights put people centre-stage. Responses that are shaped by and respect human rights result in better outcomes in beating the pandemic, ensuring healthcare for everyone and preserving human dignity.”
(United Nations, 2020).
An article in the Journal of Law and Biosciences called contact-tracing apps “a stress test for privacy” (Bradford, et al., 2020). They mention how one of the initial concerns was that many of the apps were being made in collaboration with Google and Apple. This means a joint effort between the government and Silicon Valley (Bradford, et al., 2020).
Public Health England announced back in May, that they would retain the personal data of people who test positive, for 20 years. This includes full name and date of birth, phone numbers and home and email addresses (Hern, 2020). The data was being collected as part of the test-and-trace programme through the app. This caused the Open Rights Group to launch an investigation and legally challenge the programme. “A crucial element in the fight against the pandemic is mutual trust between the public and the Government, which is undermined by their operating the programme without basic privacy safeguards. The Government bears responsibility for the public health consequences.” (Open Rights Group, 2020). Back in July, a freedom of information request by the Guardian, revealed that the test-and-trace programme had already experienced three data breaches involving personal data (Hern & Marsh, 2020).
So while it may be necessary to track people to some capacity, there are definitely valid concerns to be had. Many of the apps and tracing programmes were rushed, and some of the data protection steps were skipped. In the UK, Public Health England skipped the data protection impact assessment (DPIA) when they rushed the programme (Hern & Marsh, 2020). This essentially made the programme unlawful, which the government admitted (Open Rights Group, 2020). At first, they stated that a DPIA is only required for “high-risk” processing of personal data, and they claimed that the test-and-trace programme wasn’t. However when the Open Rights Group challenged them on this they were forced to change that statement (Hern & Marsh, 2020).
International human rights law requires that any emergency measures must be clearly defined by law, necessary for protecting public health, and strictly proportionate to that aim (Cornish, 2020). In Azerbaijan, their test-and-trace app issues electronic permits that you have to request if you wish to leave your house. The police have access to these permits and will stop you and check if you have one (Bekkoenova & Idrizi, 2020). In Armenia the government adopted a new law that permitted operators and medical personnel to share with authorities citizens’ personal data, location and contacts, including the data related to their phone calls’ time and length (Bekkoenova & Idrizi, 2020). This seems like a clear infringement of the right to privacy.
There is definitely an argument to have some sort of test-and-trace programme to limit the spread of the virus. It is however very clear that in multiple countries there have been cases of mishandling of data and also conflicts with the right to privacy.
Bekkoenova, A. & Idrizi, Z., 2020. In a global pandemic, do we still have a right to privacy?. [Online]
Available at: https://www.eurasia.undp.org/content/rbec/en/home/blog/2020/global-pandemic-right-to-privacy.html
Bradford, L., Aboy, M. & Liddell, K., 2020. COVID-19 contact tracing apps: a stress test for privacy, the GDPR, and data protection regimes. Journal of Law and the Biosciences, 7(1).
Cornish, L., 2020. Tracking COVID-19: What are the implications for privacy and human rights?. [Online]
Available at: https://www.devex.com/news/tracking-covid-19-what-are-the-implications-for-privacy-and-human-rights-97101
Hern, A., 2020. Public Health England will keep personal data of people with coronavirus for 20 years. [Online]
Available at: https://www.theguardian.com/world/2020/may/28/nhs-will-keep-personal-data-of-people-with-coronavirus-for-20-years–uk-test-and-trace-programme
Hern, A. & Marsh, S., 2020. Government admits breaking privacy law with NHS test and trace. [Online]
Available at: https://www.theguardian.com/technology/2020/jul/20/uk-government-admits-breaking-privacy-law-with-test-and-trace-contact-tracing-data-breaches-coronavirus
Hern, A. & Sabbagh, D., 2020. Privacy group prepares legal challenge to NHS test-and-trace scheme. [Online]
Available at: https://www.theguardian.com/world/2020/may/31/privacy-campaigners-prepare-legal-challenge-to-uks-test-and-trace-scheme
Norton Rose Fulbright, 2021. Contact tracing apps: A new world for data privacy. [Online]
Available at: https://www.nortonrosefulbright.com/en-fr/knowledge/publications/d7a9a296/contact-tracing-apps-a-new-world-for-data-privacy
OECD, 2020. Tracking and tracing COVID: Protecting privacy and data while using apps and biometrics. [Online]
Available at: https://www.oecd.org/coronavirus/policy-responses/tracking-and-tracing-covid-protecting-privacy-and-data-while-using-apps-and-biometrics-8f394636/
Open Rights Group, 2020. GOVERNMENT ADMITS TEST AND TRACE UNLAWFUL. [Online]
Available at: https://www.openrightsgroup.org/press-releases/government-admits-test-and-trace-unlawful/
UN News, 2020. UN agencies uphold human rights considerations in COVID-19 data collection. [Online]
Available at: https://news.un.org/en/story/2020/11/1078182
United Nations, 2020. COVID-19 and Human Rights. [Online]
Available at: https://www.un.org/sites/un2.un.org/files/un_policy_brief_on_human_rights_and_covid_23_april_2020.pdf