Thu 7 May 20
Experts in human rights law, surveillance and computer science from the University of Essex have set out the actions required before a contact-tracing app can be deployed in the UK.
In a statement, supporting their submission to the UK parliament’s Joint Committee on Human Rights, the team, from the Human Rights, Big Data and Technology project, detail the ‘critical’ steps required, including the need for statutory oversight, and for sufficient consultation and parliamentary scrutiny to ensure the public confidence necessary for success.
Their joint statement:
At the beginning of the month, an interdisciplinary team from the Human Rights, Big Data and Technology (HRBDT) project, based at the University of Essex, made a submission to the UK Parliament’s Joint Committee on Human Rights (JCHR) on the human rights implications of the proposed NHSX contact-tracing app. Citing HRBDT’s submission, the Joint Committee of Human Rights has issued a robust report today.
In our submission, we argued that contact-tracing apps may play an important role in preventing the further spread of COVID-19 and therefore finding a way out of lockdown. However, contact-tracing apps – even if ostensibly voluntary – pose many threats to human rights and could introduce a new era of surveillance which could be difficult to undo. We argued that we still know too little about how the contact-tracing app that NHSX proposes to roll out within weeks will work, including how and for long our data will be stored, when it will be deleted, and who can access it. We also noted that there is a risk that access to work and public spaces could be conditioned on the use of the app, which could result in discrimination, particularly to those who do not own smart devices or are fearful of the consequences of using the app, especially if data could be accessed by law enforcement, immigration authorities and private companies.
We also argued that for people in the UK to trust the app and actually use it - which will be key to its success - we need to be confident that the government has picked a system that will be the least intrusive into our lives and restricts our human rights as little as possible. This requires much more information on the app itself and how it is designed to protect our rights and not surveil us; much greater public and parliamentary scrutiny into how it will work; and a clear legal basis and the establishment of strong safeguards and oversight systems. We also have to make sure that the app is treated as an exceptional measure in exceptional times, does not become a norm in society and is not used for any other purpose than preventing the spread of COVID-19.
Aligning with these arguments, the JCHR found that, ‘a contact tracing app must not be rolled out nationally unless there are guarantees with respect to:
• ‘Efficacy and proportionality’ noting that the ‘app will not be as effective if uptake is low’ and therefore ‘privacy protections are themselves key to the effectiveness of the app’;
• The privacy protections ‘must be placed on a legislative footing’ in ‘primary legislation’
• A human rights impact assessment should be carried out; and
• ‘There should be an independent body to oversee the use, effectiveness and privacy protections of the app and any data associated with this contact tracing’.
It also found that there should be an efficacy review of the app every 21 days.
Welcoming the report, Professor Lorna McGregor, Principal Investigator and Director of the HRBDT project, commented: “The Joint Committee on Human Rights has issued a swift and thorough report on the urgent need to ensure that human rights protections are in place prior to rolling out any contact tracing app. Given the risks to human rights, it is critical that the app is designed to be privacy-protecting and strong legislation, safeguards and oversight are in place before the app is made available. Such a framework will give us all much greater confidence in the app, which will increase its chances of helping to prevent the spread of the virus. However, Parliament should not rush through legislation without meaningful public consultation. If widely-publicised and inclusive and if parliament is willing and able to distil and engage with the contributions, the consultation process can be swift. But it is critical to build buy-in and gets as much input as possible into the protections needed to make sure rights are fully protected and the right technology adopted. Critical to the effectiveness of the app is members of the public using it. People will be reluctant to use the device if the government does not address the legitimate concerns people will have in using it.”
The full submission by Professor Lorna McGregor, Professor Pete Fussey, Dr Daragh Murray, Dr Chris Fox, Dr Ayman Alhelbawy, Professor Klaus McDonald-Maier, Dr Ahmed Shaheed and Professor Geoff Gilbert is available to read on the UK parliament website.
You can find more information on the ESRC-funded Human Rights, Big Data and Technology project, on the project website.
The HRBDT submission is based on a blog by Professor Lorna McGregor, originally published in EJIL Talk!