Contact tracing for COVID-19 risks erasing civil liberties, says expert

In an effort to keep the spread of the coronavirus in check, many governments around the world have granted themselves and police expanded powers. As the search for a longer-term solution continues, it raises a key question: how much are we willing to give up in the name of safety?

To manage the next phase of the pandemic, governments around the world are turning to new measures, including contact tracing, to try to slow the spread of the disease. That involves partnerships with technology giants and the mass collection of personal data from cellphones. Civil liberties organizations are worried about the potential consequences of these trade-offs.

"When we talk about location data being particularly invasive, it's because where we are reflects who we are and how we live" said Brenda McPhail, the director of the Privacy, Technology & Surveillance Project at the Canadian Civil Liberties Association.

"Increasingly, in this age of surveillance capitalism, [data] can be sold and exploited, either to sell you things by corporations or to figure out how you're likely to behave," she said in an interview with Michael Enright, host of The Sunday Edition. "And it's particularly that idea of behavioural assessment … that's of particular concern, in these circumstances in the pandemic."

Here are some highlights from their conversation, edited for clarity and condensed.

Our relationship to surveillance in a crisis 

We started out very well in Canada. We took careful, measured steps. As time goes on, as we're more and more afraid, as we're more and more sick of being stuck in our homes and social distancing, as more and more people have no employment income, the cries for governments to do more, to do anything that it takes, is getting really loud. And this is where the risks of surveillance come in. This is where we start hearing, "Any restriction is OK if it helps. So why aren't you tracking people?" Because the best way to control human behaviour is to know exactly what we do at all times.

The risk of eroding our rights

I spent all my professional life thinking about privacy and surveillance in the ways that technology affects those things. Right now, the question is absolutely, "If it will help, save lives and get us through this faster, shouldn't we just give up everything for that goal?"

There's a part of me, as a mother, who is worried about her kids, as a daughter who has a mother who's in a high-risk category for this, that says I get that. I get that incredibly visceral reaction that when it comes to a choice between rights and the ability to see the faces of those I love [it] would outweigh that sort of ephemeral connection to an idea of human rights, that I think we do have in Canada. But that right now is starting to feel a little bit shaky. And maybe a little bit privileged. But the rights that form the foundation for our shared values are, in fact, the very values that are helping us get through this crisis.

What's remarkable about the social effectiveness of social distancing in Canada is not how many people are getting ticketed for sitting on a bench for too long or talking across their driveway. It's how many of us are actually doing the things that we're told to do. That frankly is the response of people who live in a mature democracy. That's the response of people who share values and are willing to prioritize the common good.

If we toss that out the window, even if it helps right now … we're going to reduce our ability to get through another crisis like this in the future. We're going to give up who we are and what we believe, in ways that aren't just going to risk eroding rights over the long-term. It's going to risk erasing them.

Privacy is a right, not a privilege

With some civil liberties, we're probably pretty safe. If following this pandemic, provinces continue to limit travel, for example, there would be a huge outcry. We'd say, "No way. I have mobility rights. I deserve to travel around my home country." And that would not stand in a democracy.

The problem with privacy is that we're in a situation where our idea of what privacy means — even our idea of whether or not it's a fundamental human right, which it is recognized as internationally — we are in a position where the idea that privacy is something that corporations or governments can ask us to give away in exchange for a service or convenience is really fundamental. 

Some of these platforms that we're using to help us navigate our way through this isolation, things like video chats, Facebook, Twitter and Instagram that are allowing us to have some form of human connection during isolation are the very platforms that have habituated us to the idea that, in exchange for the privilege of using them, they get to collect information about us.

That's been fundamentally built into the infrastructure of the business model and the internet, in ways that have slowly, already eroded and changed our idea of what privacy we deserve. So the risk in the pandemic is that that process is going to accelerate. And we're going to give up — not just in relation to companies but in relation to the state — the idea that privacy is actually a right and not a privilege.

What Canadians should watch out for

You've got to watch really closely for the idea that privacy is a barrier to public health — because it's not. The reality is there is nothing in privacy law that prevents sharing of epidemiological information that's necessary for public health purposes. There is nothing in privacy law that is a barrier to lawful collection of information. And what it is is a barrier to collecting personal information that's unnecessary and intrusive, that's not proportionate to the benefit that we get from it, either as individuals or as a society.

The other thing that we want to watch for is the kind of proposals about tracking our risk, about coming up with some kind of system to label us as safe or unsafe people. There are so many fundamental problems with that kind of social sorting, that it's just not a place that we should be going as Canadians.

Click 'listen' above to hear the full interview.