Tracking Coronavirus: Debating Privacy vs Protection

27th March 2020 Media Law

We are certainly living through extraordinary times. 

In the face of the Coronavirus pandemic, the State is now heavily restricting our ability to interact with other people. One issue to emerge in recent days is the question of how ministers in Whitehall, and their counterparts in other countries around the world, are using technology to ensure that we adhere to the new health protocols.

In the UK, the Guardian reported that one mobile network, O2, was in discussion with officials to share mobile phone users’ location and usage data, in order to assess the effectiveness of measures to limit the spread of Covid-19.

The network was quick to deny the story, but only in so far as saying that nothing had yet been agreed. Talks, according to one report, were ongoing.

Number 10 has also reportedly discussed with tech companies the possibility of creating an App to track the virus.

Media coverage from the US reflects similar conversations taking place between the likes of Facebook and Google and the Trump administration. Of course, Big Tech’s insight into location data is on an entirely different level of granularity to that of phone companies.

Some countries, notably China, South Korea and Israel have attracted attention for their use of citizens’ data to track the virus. In a nutshell, they have used surveillance to combat the pandemic.

Indeed, just before the Guardian's story broke, the Israeli government approved measures to allow its domestic security agency, Shin Bet, to use mobile 'phone data of those suspected of having coronavirus.

Under the Israeli scheme, people who may have been in contact with coronavirus sufferers pre-diagnosis are sent a text message alerting them.

Israel’s Civil Rights Association has condemned the move as "a dangerous precedent and a slippery slope", noting that the powers - which are normally only reserved for counter-terrorism operations - were enacted without a parliamentary debate.

A similar initiative in South Korea goes even further - alerting people about fellow residents with the virus and their movements – and has been criticised as potentially "unmasking and stigmatising" those infected.

Taiwan’s tracking system apparently alerts the Police if a Covid 19 sufferer leaves quarantine or turns off their phone for a prolonged period of time. By contrast, Singapore’s newly created virus tracking App requires the consent of users and encrypts the sensitive data being disclosed. It has received warmer support from privacy advocates. 

Others nations are grappling with the possibility of using mobile technology, user data and tracking to combat the infection’s progress. 

Where should the balance be struck between using data for public health reasons and respecting the privacy of individuals? It is an issue which will affect many of us around the globe in the coming weeks and months.

These days, an ecosystem of different businesses depends on selling data about our whereabouts for profit. Disclosure of location data is central to the monetisation model on which most mobile phone Apps depend. The technology has helped develop other products such as Pokemon Go. Could it now stop a virus in its tracks?

Under European data law, location data can be used for the type of activity contemplated above if it is anonymised. Media reports suggest that some European countries are indeed using anonymised data sets to tackle the spread of the virus. That said, it is debatable whether such data could ever be truly anonymised. As the Princeton computer science experts Narayanan and Felten once observed: “There is no known effective method to anonymize location data, and no evidence that it is meaningfully achievable”. 

European data law also allows States to introduce measures which would safeguard “public security” whilst using non-anonymised data. Perhaps the current crisis is such a situation. The law also requires an assessment of whether the measures being used are proportionate. Are they the least intrusive necessary? Are they proportionate to the exceptional circumstances we face?

On a practical level, detecting someone moving about their hometown is not necessarily evidence of them wilfully flouting the important coronavirus controls. Similarly, it did not require emergency legislation or location tracking to recognise that people were not staying at home; just a glance at crowded tube trains, parks and footpaths. Telling even a large group to return to their homes doesn't seem to be an impossible task. On the other hand, if the insights offered by data analysis can help fight a pandemic and save lives, some will argue that it would be wrong not to use the available data. Equally, there is a silver bullet for location tracking surveillance – assuming that a Taiwanese model is not adopted - turn your phone off!

We must do everything possible to protect those people who are placed at great personal risk by the virus. However, we also need to ensure that, even faced with the threat of a terrible illness, our fundamental rights do not also fall victim. The battle for these rights has been hard fought, and we must carefully scrutinise any erosion of them.

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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