Governments seem likely to adopt tracing apps as a part of the new normal in the fight against infection during a pandemic. This week, Prime Minister Justin Trudeau said Ottawa had “a number of proposals and companies working on different models,” and that “there are possibilities around using voluntary measures.” Unfortunately, the use of these tracing aps will not be genuinely optional or voluntary for most users. Perhaps more importantly, the technical frameworks that are currently under development must be configured in such a way that the historical discrimination of minority groups is not compounded by governments’ implementation of tracing policy.

Research suggests that these apps will be installed on mobile phones and designed to work in concert with smartphone operating systems to alert the phone’s owner if they have been in close contact with someone diagnosed with COVID-19. The apps will probably rely on the opt-in COVID-19 tracing technical frameworks that were jointly announced by Apple and Google, and let individuals reveal their COVID-19 status as well as potentially inform them about people or places that carry higher risks of infections.

A significant amount of attention has been given to the privacy and security issues associated with these apps as well as whether the tracing apps will be sufficiently accurate to warrant using them in the first place. If governments approve their use, there may be strong legal or social pressures for individuals to use them and so it is critical for policymakers to start developing equitable policies and not justify the adoption of apps on the basis that individuals have opted-in to their use.

Opt-in mechanisms are intended to give individuals control over how their personal information is handled. Apple’s and Google’s operating systems already let individuals choose whether to share their information when they install a new game or productivity app on a device. These companies’ health surveillance functionalities will replicate this existing freedom of choice model. COVID-19 related proximity information will not be collected or shared without a smartphone user having first consented to the activity.

Meaningful consent to these companies’ health surveillance must involve giving individuals a certain level of understandable information about a tracing app’s data practices. However, policy-makers cannot be focused exclusively on a narrow understanding of consent. They must go further.

Government compulsions to opt in

Governments may decide that contact tracing apps can help to contain COVID-19’s spread once sufficient testing is available for both symptomatic and asymptomatic cases. If public safety officers are tasked with enforcing social distancing or self-quarantine orders they might demand that individuals reveal their COVID-19 status. The possibility of such an encounter with law enforcement officers, in particular, will implicitly encourage Canadians to use tracing apps. With an unlocked phone in hand, officers may go on fishing expeditions to search for potentially unlawful communications or activities.

Officers asking about individuals’ COVID-19 status may be particularly concerning to minority groups subjected to carding or to enhanced and often illegal searches. Members of over-policed groups may also feel particularly compelled to opt in to using COVID-19 apps due to concerns about how police will treat them if the apps are not installed.

Moreover, tracing apps may not be optional if individuals must reveal their COVID-19 status before entering government buildings or using public services or spaces. In such circumstances, it is conceivable that individuals would be compelled to use the apps to obtain licenses, use public transit or pass through public parks.

Private business and compulsions to opt in

Private organizations will likely have clients reveal their COVID-19 status before entering a store. If you must show your status to enter a grocery store, it is no longer optional. Sometimes clients may be unable to reveal their status – they may not own a phone or have lost it and be unable to purchase another – or they may not want to reveal their status on the basis of potentially negative consequences. For example, clients of food banks may be unwilling to reveal their COVID-19 status at all and be motivated to present fake information to avoid the chance that they will be prevented from accessing a food bank for food.

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Employers may also want to know their employees’ COVID-19 status to protect or manage their workforce. Any employee who has been in contact with someone diagnosed with COVID-19 might be barred from the workplace until they undergo self-quarantine or receive negative test results. Where employers lack robust stay-at-home policies or if accessing a worksite is a condition of continuing to receive a salary, there is a risk that individuals will attempt to evade health surveillance.

Towards inclusive policy options

Canadians have demonstrated a relatively high-degree of trust in their political and health leaders throughout the pandemic. However, trust in law enforcement bodies and health bodies is considerably lower for some. The technological infrastructure being developed by Apple and Google will not resolve these historical tensions. If governments choose this path, then they must face these tensions directly.

First, governments should not empower police to view individuals’ COVID-19 status but, if they do, they must prevent officers from turning status checks into smartphone fishing expeditions. As well, public officials who review an individual’s tracing app should be required to record and publicly report the gender and ethnicity and provide an explicit rationale for assessing their COVID-19 status.

Second, policy-makers must work with organizations representing historically disenfranchised groups to develop policies which ensure members of the public can reliably access government buildings and services. Anti-poverty, homeless and addiction advocates should be consulted to determine how government services and infrastructure can continue being offered to persons who may lack access to smartphones or for cases when they may be COVID-19 positive or potentially infected.

Third, governments could subsidize the costs associated with an employee’s self-isolation or self-quarantine. Not all employees have paid sick leave that extends to self-isolation or benefits that cover the entirety of an employee’s sick leave over the course of recovering from COVID-19. Without generous sick leave policies, employees may be motivated to find ways to be at work even if their app indicates they are ill.

Fourth, any government-sanctioned tracing app must provide information for Canadians to meaningfully opt in to any health surveillance. Privacy commissioners and health officials could be tasked with ensuring that apps clearly and accurately explain an app’s anonymization measures, how COVID-19 risk assessments are generated and disclosed and the effectiveness of the app in tracing the spread of the disease.

It’s clear the apps that use Apple’s and Google’s technical frameworks are unlikely to be truly voluntary or opt-in. While neither company’s promised frameworks are presently available for developers to use, this does give policy-makers time to design ones that are inclusive. It is time they start their drafting and planning for this hypothetical tracing app future so that, if it does come to pass, any policies will avoid compounding historical discrimination.

This article is part of the The Coronavirus Pandemic: Canada’s Response special feature.

Photo: Shutterstock/By Redkey USB

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