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

These Douglas fir logs were recently found poached on Stoney Hill in North Cowichan’s forest reserve. (Larry Pynn/sixmountains.ca)
OPINION: Cowichan Valley’s Six Mountains Forest: War or Peace—The Choice is Ours

Icel Dobel writes in favour of protecting Cowichan Valley forests

North Cedar Volunteer Fire Department crews at the scene of a single-vehicle crash on Barnes Road near Holden Corso Road in Cedar. (Chris Bush/News Bulletin)
Jeep rolls over on wet afternoon in Cedar, occupants OK

Incident happened Monday, May 17, on Barnes Road

The former St. Joseph’s School converted to the St. Joseph’s Art Studios in 2019. (File photo by Don Bodger)
Former Chemainus St. Joseph’s School site sold to addictions recovery group

Diocese stresses the importance of a community outreach option in its decision

The bow-legged bear was seen roaming 2nd Avenue on Friday, May 7 and again in Brown Drive Park on May 13. (Submitted photo)
Bow-legged Ladysmith bear euthanized after vet examination

CO Stuart Bates said the bear had obvious health issues

The Arts Council of Ladysmith and District is working with several Vancouver Island art councils on the Digitial Innovation Group to improve digital skills for Island artists. (Submitted photo)
Digital Innovation Group supports digital literacy for Island artists

The goal is to leverage digital skills to promote Vancouver Island as an ‘arts powerhouse’

North Cedar Volunteer Fire Department crews at the scene of a single-vehicle crash on Barnes Road near Holden Corso Road in Cedar. (Chris Bush/News Bulletin)
Jeep rolls over on wet afternoon in Cedar, occupants OK

Incident happened Monday, May 17, on Barnes Road

More “strings of lights” were seen on May 15, 2021, in night sky over Vancouver Island. (File photo)
Sicamous RCMP Sgt. Murray McNeil and Cpl. Wade Fisher present seven-year-old Cody Krabbendam of Ranchero with an award for bravery on July 22, 2020. (Contributed)
7-year old Shuswap boy receives medal of bravery for rescuing child at beach

Last summer Cody Krabbendam jumped into the lake to save another boy from drowning

B.C. Health Minister Adrian Dix and provincial health officer Dr. Bonnie Henry update the province’s COVID-19 vaccine program, May 10, 2021. (B.C. government)
B.C.’s COVID-19 infection rate stays below 500 a day over weekend

14 more deaths, down to 350 in hospital as of Monday

Royal Bay Secondary School’s rainbow crosswalk was vandalized shortly after being painted but by Monday, coincidentally the International Day Against Homophobia, Transphobia and Biphobia, the crosswalk had been cleaned up and students had surrounded it with chalk messages of support and celebration. (Zoe Ducklow/News Staff)
B.C. high’s school’s pride crosswalk restored following ‘hateful’ graffiti attack

Hate terms, racial slur, phallic images spray-painted at Greater Victoria high school

Terrance Mack would have celebrated his 34th birthday on May 13, 2021. Mack’s family has identified him as the victim of a homicide in an apartment on Third Avenue in Port Alberni sometime in April. (SUBMITTED PHOTO)
Family identifies Ucluelet man as victim of Vancouver Island homicide

Terrance Mack being remembered as ‘kind, gentle’ man

Nathan Zuk had left his mother’s residence in Whaletown on Cortes Island in mid-December 2020 in a 14’ skiff rowboat and headed to an unknown location near the Pryce Channel, Deer passage, or Toba Inlet. Photo courtesy RCMP
RCMP need help finding man who set off from Cortes Island in 14-foot rowboat

Nathan Zuk left in December, may have been last seen in Toba Inlet approximately three weeks ago

Discarded construction materials make up nearly 40 per cent of all materials sent to the landfill from sources in the city of Victoria. (Zero Waste Victoria)
Victoria looks to curb waste by turning demolitions into deconstructions

Community drafting bylaw forcing developers to be better at salvage and recycling

Emergency service workers at the collision scene along Highway 4 in Hilliers on Sunday, May 16. A motorcyclist was airlifted to hospital by BC Air Ambulance and later died. (Collin C photo)
UPDATE: Motorcyclist dies from injuries sustained in Mid-Island highway collision

BC Highway Patrol says impairment not a contributing factor in crash

Most Read