Timotheus Hoettges, Chief Executive Officer of Germany’s telecommunications giant Deutsche Telekom AG, holds a mobile phone as he attends the presentation of the new contact-tracing smartphone app that will use Bluetooth short-range radio and technology standards from Apple and Google to alert people of the risk of infection from coronavirus, in Berlin, Tuesday, June 16, 2020. Germany has launched a coronavirus tracing app that officials say is so secure even government ministers can use it. Smartphone apps have been touted as a high-tech tool in the effort to track down potential COVID-19 infections. (Hannibal Hanschke/Pool Photo via AP)

Timotheus Hoettges, Chief Executive Officer of Germany’s telecommunications giant Deutsche Telekom AG, holds a mobile phone as he attends the presentation of the new contact-tracing smartphone app that will use Bluetooth short-range radio and technology standards from Apple and Google to alert people of the risk of infection from coronavirus, in Berlin, Tuesday, June 16, 2020. Germany has launched a coronavirus tracing app that officials say is so secure even government ministers can use it. Smartphone apps have been touted as a high-tech tool in the effort to track down potential COVID-19 infections. (Hannibal Hanschke/Pool Photo via AP)

Police should not have access to data from coronavirus contact tracing apps

‘This is not the first time that public health, privacy and law enforcement have collided’

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.

Legal precedents

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.

Structural framework

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

Just Posted

Craft Culture Events hosts its first of four summer markets at Prospera Place in Kelowna (Craft Culture Events/Contributed).
Kelowna’s Prospera Place summer market a success

Craft Culture Events hosts its first of four summer markets and vendors were ‘excited’ to be back

Lightning in Kelowna, B.C. (Contributed)
Severe thunderstorm watch in effect for Okanagan

Conditions are favourable for the development of severe thunderstorms overnight

(Dave Ogilvie/Contributed)
UPDATE: West Kelowna fire crews rescue injured mountain biker

The injury took place at the top of Smith Creek Road

Kelowna flags were flown at half-mast after the discovery of a residential school burial site in Kamloops. (File photo)
Central Okanagan school board chair reflects on recent tragedies

Moyra Baxter offers condolenses to residential school victims, slain Muslim family

The RCMP presence in Central Okanagan public schools is being reviewed by the board of education. (File photo)
RCMP presence welcomed in Central Okanagan public schools

Staff survey feedback overwhelmingly positive from students, staff and parents

Canadian Prime Minister Justin Trudeau participates in a plenary session at the G7 Summit in Carbis Bay, England on Friday June 11, 2021. THE CANADIAN PRESS/Adrian Wyld
Canada donating 13M surplus COVID-19 vaccine doses to poor countries

Trudeau says the government will pay for 87 million shots to be distributed to poor countries

Jane Linden
KCR: Volunteering keeps you active

Kelowna Community Resources shares stories of its volunteers in a weekly column

Premier John Horgan speaks as provincial health officer Dr. Bonnie Henry, right, and health minister Adrian Dix look on during a press conference to update on the province’s fall pandemic preparedness plan during a press conference from the press theatre at Legislature in Victoria, Wednesday, Sept. 9, 2020. THE CANADIAN PRESS/Chad Hipolito
B.C. officials to provide details on Step 2 of COVID reopening plan Monday

Step 2 could allow for larger gatherings and a resumption of recreational travel

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Longtime SOWINS volunteer Diane Fru (far left) walks with members of her family as they Walk To End Abuse Sunday, June 13, 2021. South Okanagan Women In Needs Society (SOWINS) raised a record amount this year. (Monique Tamminga Western News)
Walk to End Abuse in South Okanagan breaks fundraising record

More than $53,000 raised so far while the pandemic has increased need for SOWINS’ services

Indigenous Services Minister Marc Miller is seen during a news conference, Wednesday May 19, 2021 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Indigenous child-welfare battle heads to court despite calls for Ottawa to drop cases

Feds are poised to argue against two Canadian Human Rights Tribunal rulings

Two-year-old Ivy McLeod laughs while playing with Lucky the puppy outside their Chilliwack home on Thursday, June 10, 2021. (Jenna Hauck/ Chilliwack Progress)
VIDEO: B.C. family finds ‘perfect’ puppy with limb difference for 2-year-old Ivy

Ivy has special bond with Lucky the puppy who was also born with limb difference

A million-dollar ticket was sold to an individual in Vernon from the Lotto Max draw Friday, June 11, 2021. (Photo courtesy of BCLC)
Lottery ticket worth $1 million sold in Vernon

One lucky individual holds one of 20 tickets worth $1 million from Friday’s Lotto Max draw

Most Read