Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa’s faculty of law.
With experts warning that the novel coronavirus pandemic may last well into next year, the urgency of limiting the spread of the virus is sure to increase.
Cellphone and social-media data will increasingly be viewed as valuable sources of information for public-health authorities, as they seek to identify outbreaks in communities more quickly, rapidly warn people that they may have been exposed to the virus or enforce quarantine orders. The data culled from these sources may prove invaluable, but they raise exceptionally difficult challenges of balancing public-health concerns with fundamental privacy rights.
Many countries have already moved in this direction. For example, Israel has implemented a system that involves the collection and use of cellphone location data to identify at-risk individuals, who may receive text messages warning that they need to self-quarantine. Taiwan has used cellphone tracking to warn those self-quarantining that they have travelled too far from home, with some Indian states adopting similar measures.
In normal times, most Canadians would respond to the collection and use of sensitive health and location information with a hard “no.” But these are not normal times.
The trade-offs between public health and privacy, not to mention the massive impact being felt by millions as the economy grinds to a halt, means that all measures can and should be considered in response to the global pandemic. In other words, rather than asking whether to use the data, the question is likely to be under what circumstances and with what safeguards and oversight.
There are at least three types of data that may be collected and used to counter the spread of the coronavirus.
The first is aggregated data that could be used to identify trends such as community outbreaks. Provided that it is aggregated in a sufficiently large pool, this data do not involve personally identifiable information and would not typically trigger Canadian privacy law requirements.
While there will still be concerns about the use of this data, there are unquestionable benefits that may come from aggregated phone, social media and search data that could facilitate faster responses to communal health risks. There are reports the United States has been considering this approach, and the Canadian government should be working with both telecommunication and technology companies to ensure the use of such data arises only in appropriate circumstances and with the necessary safeguards in place.
The second type involves cellphone location data of specific users. Using the Taiwan model, this data might potentially be used to ensure that self-quarantine rules are properly respected. While users could presumably just leave their phones at home, this form of location data would uncomfortably turn our phones into electronic monitoring devices without user consent.
The third type would also involve cellphone location data, only this time it would be used to identify other people who may have unknowingly been placed at increased risk by coming into close proximity with someone known to have the virus. This data collection and use – similar to the Israeli model – would frequently be retrospective in nature, looking back at the prior two weeks to effectively trace everyone’s movements.
Given the urgency of addressing the coronavirus pandemic, there are obvious reasons to use every tool in the policy toolbox, even those that ordinarily raise deeply troubling privacy concerns. Since consent-based models do not work and some data cannot be de-identified or aggregated, the solution for more sensitive location data lies in developing safeguards to ensure that any measures are minimally privacy invasive, temporary and subject to full oversight.
These safeguards should include strict limits on data retention, with the location data immediately deleted as soon as the necessary period (presumably 14 days) expires. Moreover, there should be clear limitations on use, ensuring that the data only be used for the enumerated public-health purposes. The policies should also feature restrictions on further disclosure, severely limiting access only to trusted individuals within governmental organizations.
Even with these safeguards, appropriate oversight and penalties are needed. This includes transparency about the policies, public reports on data access and use, real-time oversight from the Office of the Privacy Commissioner of Canada and tough penalties for any potential violations.
Perhaps most importantly, these powers must be temporary in nature, requiring parliamentary approval for short-term use and regular renewals as events warrant. Given the privacy risks associated with these uses of sensitive health and location tracking, we must ensure that it does not become the new normal.
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