As many countries resort to using contact tracing technologies to contain the spread of COVID-19, concerns are being raised about risks to privacy and the willingness of citizens to forfeit civil liberties in the effort to combat the virus.
Mass surveillance through new technologies that use cellphone data to track the location of those infected has particularly raised red flags.
Taiwan and South Korea are examples of countries that have used location-tracking capabilities in smartphones to great effectiveness. Israel drew ire when it approved, until April 30, the collection of personal data from private cellphones by the country’s domestic spy agency to locate potential virus carriers.
The European Data Protection Supervisor has called for a pan-European mobile app to track the spread of the virus, as an improvement over the hodge-podge of apps currently used in various EU countries.
In Canada, both Ontario and Quebec are considering some form of contact tracing to help contain the virus. In Alberta, one of the features of Premier Jason Kenney’s “relaunch strategy” is voluntary smartphone apps that track movement.
“This app uses Bluetooth to note whether you came into contact with someone who tested positive for COVID-19,” Chief Medical Officer Dr. Deena Hinshaw explained on April 23.
It’s no surprise that such measures have been met with skepticism by those worried about the long-term implications they may have for privacy. Writing in a post for the MacDonald-Laurier Institute, Sylvia Lorico notes that Google has been using location data from Google Maps across 131 countries to track movement patterns during the pandemic.
“Google’s executives said that the data was meant to assist public health officials. But that begs the question: who told Google they should be doing this?” he writes.
“No one. There’s no level of accountability. And that’s the biggest problem with using these technologies. It comes at the expense of our privacy and civil liberties.”
Joanna Baron, the executive director of the Canadian Constitution Foundation, points out that laws already in place set certain limits on what governments can do in this context.
“In ‘peacetime,’ data protection laws limit circumstances in which governmental bodies can collect personally identifiable information,” she said in an interview.
“Most require direct consent from the individual, with certain exceptions. In the case of the AI-enabled location tracking floated by Premier Kenney, a preferable option would be for individuals to opt in to a tracking app via their devices.”
The nuance surrounding these questions was addressed by the Supreme Court of Canada in the 2017 R.v. Jones case, in which justices contemplated whether police could access the text messages of a suspect. Justice Suzanne Cote concluded that police could do so if “authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out was reasonable.”
Additionally, Baron notes that private sector data-protection laws also impose limits on organizations sharing data with governments, with the exceptions being emergencies and whether a specific law permits the data-sharing.
“On its face, such data-sharing without individual consent violates the Charter’s guarantee in section 8 against ‘unreasonable search-and-seizure,’” she says.
“The question will be whether it is justified under section 1, which queries whether a rights infringement is demonstrated to be proportionate and minimally impairing. In order to clear that hurdle, governments would be wise to also enact provisions that ensure this information is used only for exceptional circumstances identified in the law and retained only long as is necessary.”
Barry Sookman, a lawyer who has specialized in these areas and written widely on the issue of technology and surveillance, notes that there’s “a general consensus that freedoms we enjoy as Canadians may be inhibited where exists justifiable reasons.”
“However, to be justified, the intrusion into our civil liberties must pass a series of tests including that it must be minimally impairing and that the impairments are outweighed by the social benefits. I believe that the same kinds of tests which are at the heart of our Charter rights should be applied in these emergency situations.”
But he believes that, from looking at countries like Taiwan, South Korea, and Singapore, the measures have been proven effective when it comes to identifying infected contacts.
“We should remember that these applications supplement procedures that have been used and are still being used in dealing with this and other epidemics—they just do it more efficiently,” he says. “There are issues with how the data is gathered, but those are important architectural choices that can be used to limit invasion of privacy.”
The argument that has been put forth by many civil libertarians is that these measures, however justified, will be a slippery slope in that they will be difficult to reverse when things return to normal.
Sookram doesn’t see that happening in Canada, however.
“Canada has a strong culture of protecting privacy, and I believe Canadians and governments understand that certain intrusions on privacy can be justified in emergencies but not when the emergency situations subside. They would get considerable pushback from the Canadian public and privacy commissioners across the country,” he says.