This was not the title of the panel I sat on at the Public Service Information Community Connection virtual “confab” today, though it does show the view that I attempted to convey.
John Wunderlich moderated a good discussion that involved Frank Work, Ian Walsh and me. When I haven’t yet formed ideas on a subject, I prepare by creating written remarks, which are typically more lucid then what ends up coming out live! I’ve left you my prepared remarks below, and here are some of the good insights I gained from the discussion:
- The need for transparency may warrant stand-alone legislation
- The lack of voice in favour of government data use is not atypical
- The enhancement of tracing efforts is a narrow public health use
- The SCC’s privacy jurisprudence ought to foster public trust
All in all, I sustain the view recorded in the notes below: governments should get it done now by focusing on the enhancement of manual contract tracing. Build the perfect system later, but do something simple and privacy protective and learn from it. The privacy risks of this centralizing data from contact tracing apps are manageable and should be managed.
Given that public health authorities already have the authority to collect personal data for reportable diseases, what are the reasonable limits that should be put on COVID-19 data collection and sharing by applications?
It’s not yet a given that we will adopt an approach that will give public health authorities access to application data even though (as your question notes) they are designated by law as the trusted entity for receiving sensitive information about reportable diseases – diagnostic information first and foremost, but also all the very sensitive data that public health authorities regularly collect through public health investigations and manual contact tracing.
What we have here is an opportunity to help those trusted entities better perform their responsibility for tracing the disease. That responsibility is widely recognized as critical but is also at risk of being performed poorly due to fluctuating and potentially heavy demand and resource contraints. Based on a ratio I heard on a Washington Post podcast the other day, Canada’s population of 37 million could use 11,000 contract tracers. From my perspective, the true promise of an app is to help a much smaller population of contract tracers trace and give direction faster.
The most important limit, then, is data minimization. Yes collect data centrally, but don’t collect location data if proximity data will support real efficiency gains in manual contact tracing. Set other purposes aside for the post-pandemic period. Collect data for a limited period of time – perhaps 30 days. Then layer on all your ordinary data security and privacy controls.
Assuming that COVID-19 applications require broad population participation, should or can provincial or federal authorities mandate (or even request) their installation by citizens?
It’s too early to say, though government would be challenged to make a case for mandating installation and use of an application because the data collection would likely be a “search” that must be a “reasonable” search so not to infringe section 8 of the Charter.
To briefly explain the law, there are three distinct legal questions or issues.
First, there needs to be a “search,” which will likely be the case because the data we need to collect will attract a reasonable expectation of privacy.
Second, the search needs to be “reasonable.” If a search is reasonable, it’s lawful: end of analysis.
And, third, a search that is unreasonable can nonetheless be justified as a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society.
You can’t do the legal analysis until you have a design and until you understand the benefits and costs of the design. It’s quite possible that good thinking is being done, but publicly at least, we still seem to be swimming in ideas rather than building a case and advocating for a simple, least invasive design. We need to do that to cut through the scary talk about location tracking and secondary uses that has clearly found an audience and that may threaten adoption of the optimal policy.
What will be or should be the lasting change that we see coming out of COVID-19, technology and contact tracing?
What I’ve seen in my practice and what you may not realize is that employers are all in control of environments and are actually leading in identifying the risk of infection. Employers will often identify someone who is at risk of infection three, four or five or more days before a diagnosis is returned. They are taking very important action to control the spread of infection during that period without public health guidance.
Then we have the potential launch of de-centralized “exposure notification” applications, where the direction to individuals will come from the app alone. To make an assessment of risk based on proximity data alone – without the contextual data collected and relied upon by manual contact tracers – is to make quite a limited assessment. It must be that app-driven notifications will be set to notify of exposure when the risk of infection is low, but such notifications will have a broad impact. That is, they will cause people to be pulled out of workplaces and trigger the use of scarce public health resources.
This activity by employers and (potentially) individuals is independent of activity by public health authorities – the entities who are authorized by law to do the job but who also may struggle to do it because of limited resources.
Coming out of this, I’d like us to have resolved this competition for resources and peoples’ attention and to have built a well-coordinated testing and tracing system that puts the public health authorities in control and with the resources and data they need.
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