Teresa Scassa - Blog

Monday, 01 June 2020 10:56

Privacy and Contact Tracing: Comments to INDU Committee of the House of Commons

Written by  Teresa Scassa
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On May 29, 2020 I was invited to a meeting of the House of Commons INDU Committee which is considering Canada's response to the COVID-19 Pandemic. On May 29, it was focusing its attention on contact tracing apps. A copy of my brief oral presentation is below. The videotape of the hearing and the Q & A with fellow invitee Michael Bryant of the Canadian Civil Liberties Association can be found here.

 

Speaking Notes for Teresa Scassa, Canada Research Chair in Information Law and Policy, University of Ottawa, INDU – Canadian Response to the COVID-19 Pandemic, May 29, 2020

Thank you, Madame Chair and Committee members for the opportunity to address this committee on privacy in Canada’s COVID-19 response.

We are currently in a situation in which Canadians are very vulnerable – economically, socially, and in terms of their physical and mental health. Canadians know that sacrifices are necessary to address this crisis – and have already made sacrifices of different magnitudes. Most Canadians accept that this is necessary to save lives and to begin to return to ‘normal’. They accept that some degree of privacy may need to be sacrificed in some contexts. But there is no binary choice between privacy and no privacy. Instead, there must be a careful balancing of privacy with other public interests.

There are two overarching privacy concerns when it comes to Canada’s response to the pandemic. The first is that there is a risk that poorly thought out collection, use or disclosure of personal information will create privacy and security vulnerabilities with little real benefit, or with benefits disproportionate to risks and harms. The second is that the pandemic may lead to the introduction of data gathering or processing technologies that will create a ‘new normal’ leading to even greater inroads on privacy, dignity and autonomy. Importantly, surveillance often has the most significant adverse impacts on the most vulnerable in our society.

The pandemic context raises a broad range of privacy issues, from government or law enforcement access to location and personal health information, to contact tracing apps and beyond. As we begin the ‘return to normal’, we will also see issues of workplace surveillance, as well as tracking tools and technologies used to help determine who gets into stores, who receives services, or who gets on airplanes. Personal health information, generally considered to be among our most sensitive personal information, may become a currency we are required to use in order to carry out ordinary daily activities.

Since I am limited only to 5 minutes, I would like to tease out 3 main themes.

1) A first theme is trust. “Trust” is referenced in the Digital Charter and is essential when asking Canadians to share personal information with government. But trust is complicated by a pandemic context in which issues evolve rapidly and are often unprecedented. One thing that trust requires is transparency, and governments have struggled with transparency – whether it is with respect to sharing data that models the spread of COVID-19 with the public or (as was the case of Alberta) launching a contact-tracing app without releasing the Privacy Impact Assessment. Transparency is essential to trust.

2) A second theme is necessity and proportionality. The Privacy Commissioner of Canada, along with his provincial and territorial counterparts, supports an approach to privacy based on necessity and proportionality. This is derived from the human rights context. Necessity and proportionality provide a robust analytical framework for balancing privacy rights against other public interests, and should already be part of an amended Privacy Act.

The importance of this approach cannot be overemphasized. We are in a data driven society. It is easy to become enthused about technological solutions, and innovators promise that data analytics, including AI, can solve many of our problems. We need to remember that while technology can provide astonishing benefits, there is already a long history of poorly designed, poorly implemented, and often rushed technological solutions that have created significant risks and harms. Novel technological solutions often fail. This is becoming a reality, for example, with many recently launched national contact tracing apps. Rushed, flawed schemes to harvest personal data – even if for laudable goals – will erode trust at best and cause harm at worst.

This is why clear guidelines – such as those developed by the Commissioners – are crucial. There should be an emphasis on purpose and time-limited solutions that minimize privacy impacts.

3) A third theme is human rights. Privacy is closely tied to human rights, but this relationship is increasingly complex in a data driven society. Privacy laws govern data collection, use and disclosure, and it is increasingly common for data uses to have significant impacts on human rights and civil liberties, including the freedom of association, freedom of speech, and the right to be free from discrimination. Until recently, public conversations about contact tracing have been predominantly about government-adopted apps to deal with public health disease tracking. As businesses reopen and people go back to work, the conversation will shift to contact-tracing and disease monitoring in the private sector, including the possible use of so-called immunity passports. We will see workplace surveillance technologies as well as technologies that might be used to limit who can enter retail stores, who can access services, who can get on airplanes, and so on. While there are obviously serious public health and safety issues here, as well as issues important to economic recovery and the ability of people to return to work, there is also significant potential for harm, abuse, and injustice. Much of this private sector surveillance will be in areas under provincial jurisdiction, but by no means all of it. The federal government must play a leadership role in setting standards and imposing limitations.

I will end my remarks here and look forward to your questions.


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