By: Inês Gonçalves Ferreira, Junior Research Associate, PILPG-NL
Contact tracing apps are emerging to combat the COVID-19 pandemic. From those already used in Singapore, Israel, and Australia to others being developed in France and in the United Kingdom, governments throughout the world have their eyes on this technology as a means to lift the lockdown measures. Private consortiums, including an Apple and Google partnership, have also put forth their proposals. Supporters of these apps claim that their widespread use would enhance authorities’ efforts in identifying who was in contact with people that have tested positive for the novel coronavirus. But will human rights be safeguarded if states implement these apps?
What are contact tracing apps and where are they being used?
The World Health Organization (WHO) has explained that contact tracing is an essential public health practice to combat the spread of viruses. It allows breaking chains of infection by monitoring the people who have interacted with someone that is infected with a virus. When a virus is as contagious as the novel coronavirus, manual contact tracing requires extensive staff and resources. Despite this, the need to rapidly identify new cases is heightened as states seek to lift lockdown measures.
As a solution, apps are being developed to improve contact tracing, either at the request of state authorities or on private initiative. The apps identify and notify the users that have been in proximity to other users that have tested positive for the virus. They use different methods to perform this function. Some apps, such as the Israeli HaMagen, use GPS to cross information about the location of users and of those that have the virus. Others, such as the Singaporean TraceTogether and the Australian COVIDSafe, use Bluetooth instead. Bluetooth does not detect the geolocation of smartphones but only their proximity to other smartphones using the same apps. The apps being developed in Europe and the United States opted for this seemingly less invasive method. But the developers of both systems claim that the data is stored only in users’ devices and not sent to a centralized server and that the apps do not disclose the identity of users to other users or third parties. Disclosure of the information to the authorities requires consent from the user.
The human rights implicated
In responding to a global pandemic, different international human rights are involved. International human rights law confers on individuals the right to the highest attainable standard of health. Under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the control of epidemics is one of the measures that states have to take to fulfill this right. This includes resorting to technology and improving the surveillance of epidemics and the disaggregated collection of data, as highlighted by the Committee on Economic, Social and Cultural Rights. According to the Human Rights Committee, the states’ duty to protect the right to life, provided for in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) entails an obligation to address threats posed by deadly diseases. On the other hand, ongoing restrictions on movement imposed by orders of confinement limit the freedom of movement set out in Article 12 of the ICCPR.
Enhancing contact tracing through technology seems promising because it allows states to promote the rights to life and health while minimizing restrictions on free movement. But these apps create a new set of risks, as civil society and scholars have warned.
The right to privacy is the most directly impacted. Article 17 of the ICCPR prohibits states from intervening arbitrarily or unlawfully in the private sphere of individuals. Information about individuals’ location and health can pertain to such a private sphere. Supporters of these apps claim that the data collected is anonymous and not centralized. However, as security and privacy experts in the United Kingdom alerted, the emerging technology risks becoming a form of digital surveillance through their abuse by hackers or other “bad actors”.
Advocates of the apps also stress that their use is voluntary. But in places like China, where using the apps is a requisite to enter public spaces, it becomes mandatory in practice. This threatens the individuals’ freedom of movement, that precludes private and public interferences on the liberty to move within a state’s territory. If individuals are required to go into confinement on only the basis of an app alert and without testing, implementing such apps may amount to an arbitrary deprivation of personal liberty, constituting a violation of Article 9 of the ICCPR.
Imposing the use of the apps, either by law or in practice, can further result in discrimination against those that do not own a smartphone, which can be a form of discrimination on the basis of wealth, or promote discrimination against individuals exposed to the virus. Discrimination on any grounds is unlawful under Article 26 of the ICCPR.
The risks are many and extend beyond the current framework. As the United Nations (UN) Secretary-General expressed in a recent report, there are concerns that the measures implemented now will outlive the pandemic, being the first step towards a “new normal”.
Are contact tracing apps lawful?
Human rights law applies in all situations, including in public health emergencies. But extraordinary circumstances may require extraordinary measures and international human rights law takes this into account. Most human rights are not absolute. If certain requirements are met, their limitation or suspension is allowed.
The rights provided in the ICCPR, and other human rights instruments, can be limited to the extent that it is necessary and proportionate to pursue a legitimate aim, and as long as such limitations are provided by law. These requirements are expressly mentioned in some provisions/articles. For example, Article 12 of the ICCPR provides that restrictions to the right to liberty of movement are permitted if they are set in the law and are necessary to protect public health. But the requirements must be met even where they are not expressly mentioned in the treaties. Regarding Article 17 of the ICCPR, for instance, the Human Rights Committee has clarified that the prohibition of ‘arbitrary or unlawful interference’ with privacy essentially means that interferences have to satisfy the same conditions set forth in Article 12 of the ICCPR.
In more extreme situations, states can even suspend human rights. Pursuant to Article 4 of the ICCPR, states can derogate from their obligations in case of a ‘public emergency threatening the life of a nation’. There are strict requisites imposed on derogations, including a necessity and proportionality test. Furthermore, this can only affect some rights. Rights to life, liberty and others identified in the convention cannot be suspended. But according to the Human Rights Committee, even derogable rights have an untouchable core, meaning that they cannot be entirely put off. Currently, some states have notified derogations from the ICCPR because of COVID-19. However, implementation of these apps does not seem to fall within a derogation of rights in an emergency phase, but a part of normalcy. As such, it can be considered a limitation of rights under the regular analytical framework.
Although permissible, limitations and derogations, as all exceptions to human rights, must be construed restrictively. Their requirements have to be strictly observed by states. Do contact tracing apps meet such a threshold? Definite answers require a case-by-case analysis.
To pass the proportionality and necessity test the employment of the apps has to be appropriate to achieve the public health goals. There are indications that contact-tracing apps are not sufficiently effective. Some experts estimate that about 60% of the population would have to use the app for it to be effective. Even if such high numbers are achieved, how trustworthy is the self-reported information? Users may be dissuaded from marking themselves as infected in the apps, especially if they face unfavorable consequences from doing so. The Director-General of the WHO has urged states to ‘test, test, test’. Without widespread testing, contact tracing apps have limited results.
While some claim that apps can play an important role in containing the spread of the virus even with fewer users, a “better than nothing” approach is not compatible with human rights law. States have to demonstrate that similar results cannot be achieved by less onerous methods. And even if they do, the apps have to be designed to have the minimum possible impact on human rights. As emphasized in a joint statement of more than 100 organizations, transparency is fundamental here. Besides, to prevent this from becoming a form of digital surveillance surviving the pandemic, it is crucial to set a time limit for their use. It must also be ensured that they are not misappropriated for different aims. On this analysis, it is possible for an app to be a permissible limitation, but those being developed currently are not likely to be considered such.
Conclusion
Implementing contact tracing apps limits human rights, particularly the right to privacy. While limitations are permissible if the respective requirements are met, it is doubtful that the apps currently being implemented are effective enough to be considered an appropriate measure to achieve the public health aims. If they are implemented, safeguards must be in place to ensure that they are not used beyond the current emergency or abused for less legitimate aims. Human rights law guides the response to the pandemic on all fronts. A rush to return to a new normal can risk reshaping normalcy to a constriction of rights.