Reflections on Bracing for Impact III - COVID-19 Contact Tracing: Legal and Ethical Challenges

In the rush to deliver technology-based solutions to the COVID-19 pandemic, we need to resist the inclination to “move fast and break things”.

Attendees were reminded of this by Professor Dov Greenbaum on Monday, June 22nd, 2020, when IP Osgoode hosted “Bracing for Impact III: Emerging Technologies”. The virtual conference was the third in a series of speaking engagements in partnership between IP Osgoode, Microsoft, and IDC Herzliya. The discussion centred around the legal and ethical challenges surrounding COVID-19 contact tracing and was moderated by Professor Pina D’Agostino and Doctor Aviv Gaon. The full list of speakers and their bios can be found here. The following is a summary of the discussion that took place.

What is Contact Tracing?

Contact tracing is a public health measure for reducing the spread of communicable diseases. It has been implemented for hundreds of years, and in essence, aims to temporarily remove carriers of a disease from society in order to reduce the disease’s spread. Manual contact tracing is initiated when an individual tests positive, and tracks only the infected individual and their known contacts.

However, in the time of COVID-19, during which John Weigelt, National Technology Officer for Microsoft Canada, says two years of innovation has occurred within two months, digital contact tracing is now possible. Applications for digital contact tracing differ from traditional contact tracing as tracing occurs constantly, creating a technological record of a person’s daily contacts, regardless of whether they ever test positive.

App Varieties

Professor Teresa Scassa enumerated three basic metrics that differentiate apps. These include the type of technology, the level of data centralization, and the voluntariness of use. You can read about examples of national apps that fall across the spectrum on each of these metrics here and here.

An example on the far end of the spectrum for each of these metrics is the early contact tracing effort in Israel. Professor Dov Greenbaum explained the early deployment of contact tracing in Israel, through Shabak (aka the Shin Bet), the country’s internal security department. Initial efforts saw Shabak analyzing information collected by cell phones and other sources, including records of purchases, to trace people’s movements and interactions. This was a centralized model as the information was accessible to Israel’s public health authority. Affected individuals would, without knowing they were being tracked, receive an instruction to self-quarantine.

Given its intrusive nature, this approach was the subject of much criticism domestically and internationally. As a result, the government has moved to a less intrusive approach, involving GPS-based contact tracing. However, Professor Greenbaum noted that Israel has a large population of people who do not use smartphones. As a recent Oxford study discovered, at least 60% of the population must use contact tracing apps for them to be effective. Therefore, there is some concern that the new Israeli approach will not be effective, and that the government may shift back to the original, and far more intrusive, approach.

In contrast to Israel’s early approach, the Google-Apple API has emerged as a dominant model off of which to build contact tracing apps. It leans towards the most privacy preserving of each metric, collecting only Bluetooth proximity data, storing personal information locally, and remaining voluntary. The Google-Apple API is what Canada’s national app COVID Alert is built upon. The app will be tested in Ontario, beginning in July 2020.

Ethical Concerns and Trust

Currently, there is no legislation in place that specifically governs data collection from contact tracing apps. Doctor Ian Stedman advised that a robust governance framework is in fact needed before contact tracing apps can be implemented.

Without a clear statement of the purposes behind contact tracing, and without accountability measures in place to ensure transparency and purpose limitation, large sectors of the population will lack trust in these apps. Without widespread trust, contact tracing apps will not be able to attract enough users to make them effective. Therefore, governance framework must provide a backstop to data collection, retention, and use. Stakeholders, including those from the most vulnerable communities, should be consulted in the drafting of this governance framework.

AI and Contact Tracing

Carole Piovesan, Partner and Co-founder of INQ Data Law, shone a spotlight on Toronto-based AI companies and their efforts before, during, and after the pandemic. For example, Toronto-based AI company BlueDot predicted the spread of COVID-19 as early as December 2018, and published an article in the Journal of Travel Medicine. You can hear about the early prediction from BlueDot founder and University of Toronto professor Kamran Khan here.

Other important uses for AI during this time include drones for patient sample and medical supply transport, predictive modeling to ensure hospitals are prepared for the next influx of patients, as well as targeted communications and active filtering out of disinformation on social media sites.

Moving Forward

It appears that COVID-19 will be central to any decision making within the foreseeable future. While there should be efforts to develop and improve technological tools, these efforts should go hand in hand with improvements to manual solutions like COVID-19 testing.

As we move forward, there will be many more discussions, including those in the private sector, as companies start to move their workforce back into communal environments. While elements of these discussions have already been had, it has always been in the context of some far-off future. Now, all of a sudden, we have a pressing reason to dig into these complex topics and come to workable solutions that align with our values as a society as soon as possible.

If you found this event interesting, stay tuned for the Bracing for Impact Webinar Series in the Fall.

Written by Rachel Marcus. Rachel is going into her third year at Osgoode Hall Law School. She is a Fellow with the IP Osgoode Innovation Clinic, and a student in the IP and Technology Law Intensive.

 

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