On November 11, 2020, Osgoode Privacy Law Society (OPLS), in collaboration with Osgoode Health Law Association (OHLA) and Osgoode Constitutional Society (OCLS), held a panel event to discuss the existing tensions between public health and individuals’ privacy rights that have been pushed to the forefront of conversations as a result of the COVID-19 pandemic. Dr. Andrea Slane of Ontario Tech, Carole Piovesan of INQ Data Law, Daniela Pacheco of Neinstein LLP, and Ian Stedman, Assistant Professor at York University, provided their expertise on issues such as contact-tracing apps, surveillance, and the changes in healthcare that have been propelled by the current pandemic. In this article, we will explore a few of the main points discussed by the panel.
The Shift from Traditional Care Delivery to Telehealth - The End of the ‘Waiting Rooms’?
The panel discussed the potential permanent shift from traditional healthcare delivery to telehealth. More specifically, the panel was asked to comment on the increasing shift to virtual care for stigmatized conditions such as mental health issues. Although there are certain benefits to using virtual-care as a means to move away from or supplement the traditional in-person delivery of some forms of health care, such a shift does not come without its risks.
The use of telemedicine in Ontario is not a new phenomenon, however, since the onset of the pandemic, more Ontarians are now seeking medical care through virtual means. Telehealth offers the benefits of eliminating wait-times and providing a safe and comfortable space for patients to seek services such as mental health care that are still stigmatized in society. The privacy concerns that are often linked with virtual-care involve a lack of control by patients over the use and sharing of their personal health information. Although there are regulatory frameworks set in place to protect patients, increasing reliance on digital means of collection and transfer of health-related data puts patients’ privacy at significant risk. These are issues that are expected to be addressed as we continue to adapt to the changes that the pandemic has imposed on our lives.
Lack of Accessibility of Canada’s Contact-Alert App
A key topic of discussion for the panel was the problems caused by contact-tracing applications. Attendees might have expected the panelists to delve into privacy issues regarding Canada’s COVID alert app. However, the panelists agreed that the federal COVID alert application is privacy-friendly, a statement echoed by privacy experts. A point of contention among privacy watchdogs is the labelling of the app as a “contact-tracing” application since the federal application is an exposure-notification application. The distinction between the two types of applications is important because they differ in how they protect privacy and public health.
The federal COVID alert app does not collect personal information, nor does it track a user’s location. Instead, the app produces random codes and uses Bluetooth technology to exchange codes with other devices in physical proximity that have the application installed. If a person tests positive for the virus, they are given a key to input into the app. Once inputted, people who could have been potentially exposed over the last 14 days are notified. The entire process is voluntary.
The panelists were far more concerned about the lack of inclusivity of the application. The app requires users to have Apple or Android phones made in the last five years, a relatively new operating system, and wireless access. These requirements make the app inaccessible for older Canadians and other marginalized groups, who are already disproportionally impacted by the virus. Proponents of the application design blame the lack of accessibility on the government, asserting it is the government’s responsibility to ensure that the application is available for all Canadians. For the application to be successful, 65-80% of all Canadians need to use it. However, over 20 million Canadians still do not have access to the app, partly because not every province has implemented its version or the federal version. While the app is just one aspect of the broader global health response to COVID-19, if it were accessible to more of the population, it could be an integral aspect of Canada’s public health response.
Acknowledgements
The panel consists of a breadth of discussion on balancing privacy and public health during the pandemic, and we would like to thank the panelists for sharing their expertise with attendees!
Written by Bonnie Hassanzadeh, IPilogue editor and Clinic Fellow at Osgoode Innovation Clinic.
Written by Nikita Munjal. Nikita is an IPilogue Editor, Clinic Fellow with the Innovation Clinic, and a JD/MBA Candidate at Osgoode Hall Law School.