Contact-tracing apps: a major test for privacy in Europe

The European Commission guidelines on contact tracing, published last week are a starting point for states to avoid such a path.

Developed by EU states with the commission, they contain guidance for member states navigating new methods of data collection in a public health crisis, while reminding them of their existing human rights obligations.

This 'common European approach' of standard-setting and oversight, if rolled out properly, could help foster movement of people between EU member states and stimulate economic growth.

Rights in times of crisis

The proposals state that apps must be in line with the GDPR – a call that EU data regulators say that is not only possible, but necessary.

While there are some limited exemptions for business-as-usual GDPR processing in a public health crisis, this is not a free pass for states to ignore existing legal requirements.

International human rights law still applies, and any interference with privacy must still be lawful, necessary and proportionate. Amnesty and over 100 other rights groups have laid out some conditions states must meet when introducing increased digital surveillance to address the pandemic.

The EU guidelines promote human rights and data collection principles – encouraging a laudable light-touch approach from states, recommending that any apps are voluntary and quickly dismantled once the crisis has passed. But there is a deep confusion and contradiction running through these proposals that sets alarm bells ringing.

Decentralised apps for privacy

The guidelines launched with a headline recommendation for decentralised contact-tracing apps – the kind that will apparently be provided for by Apple and Google – which give far less access to personal data to government agencies, and are the right choice when it comes to protecting privacy and other human rights.

Yet this recommendation is fast undermined by discussion of the 'limitations' arising from a privacy-first approach.

These are guidelines only and contact tracing apps can vary hugely in terms of function and design but the proposals at times seem to advocate for apps that not only connect to a centralised government database, but to allow for a networked pan-European database.

This would be a firm step in the wrong direction for human rights. It would open the door for states to access phenomenal new amounts of sensitive information, opportunities to cross-reference previously unlinked data – not just nationally, but internationally – which grants governments vast new powers to discriminate based on this information.

Contact tracing apps must be limited in scope, with a clearly defined purpose and constraints. There is so much opportunity for mission creep here, with states collecting data 'just in case' or attempting to merge information with existing databases.

Any contact tracing app must be subject to rigorous and regular review by independent data protection authorities to ensure that app use is in line with human rights and data protection laws and standards.

While they propose only voluntary applications, the guidelines highlight that to be effective, apps should be adopted by over half of the population of member states.

One can only hope that states understand this to be an indicator of the limits of contact tracing apps, rather than an encouragement to push on their populations. In South Korea, the contact tracing programme being held up as an example of good practice, people are mandated to give over extensive amounts of data, a significant concern for human rights.

The EU commission must clarify that to protect human rights, any contact tracing apps must be decentralised in approach. To avoid state overreach the guidelines must make explicit what data may be collected under what circumstances, where and how it may be stored and, crucially, what data collection and practices are out of bounds.

There is slightly more clarity from EU data regulators now on red lines for contact tracing app data collection, but to what extent are states listening?

The common European approach isn't exactly going to plan. France has asked Apple to dismantle privacy protections to establish a centralised app. Austria and Switzerland have today opted for decentralised models.

The Netherlands hosted a rollercoaster 'app-athon' competition which has thankfully realised the complexity of such an undertaking and concluded that more time is needed, following interventions from Amnesty and others.

In order for this technology to work, the public need to trust that it's in their interest to use it.

We need to know that any creators, operators and reviewers are acting in our best interests and will protect our human rights both during and beyond the crisis. Particularly during times of emergency we cannot assume that states will do the right thing – we need transparency at every step of the way.

It's still unclear to what extent contact tracing apps can ease pressure on healthcare systems. They are merely one tool that states can use to manage this pandemic, but these apps must be seen in daylight, with all their limitations and flaws, and must never be rolled out at the cost of human rights.