The TraceTogether Trade-Off

By Sophie Bijl-Brown

‘Contact tracing’ is a tool many governments are using to monitor Covid-19 and warn people of exposure to the virus. The Ministry of Health identifies and contacts those who have been in close proximity to someone diagnosed with Covid-19, and provides advice on self-isolation. So far this has mostly been done manually, however the New Zealand Government is considering the use of TraceTogether, an app created in Singapore, to create an easier and more accurate method of contact tracing. A lot of thought has gone into the design of this app in regards to respecting users’ privacy. Importantly, users’ exact location is unnecessary as the tracing occurs through connections between Bluetooth signals. A diagnosed person must also authorise data being sent to the Ministry of Health. 

With indefinite lockdown being the alternative, contact tracing is extremely appealing, and brings the enormous potential benefit of mobile data to light. However, it also brings Big Brother to mind.

 Two kinds of freedom are seemingly at stake: the freedom to continue ‘normal’ social life — going to school, work, shops, beaches and parties — and the freedom to move without state knowledge and potential interference. Throughout history, totalitarian states have been consolidated by curtailing people’s freedom of movement. Is contact tracing a slippery slope towards increased state control?

Location Privacy in the Private Sphere

While it feels acceptable for the New Zealand government to access and use people’s location data to help prevent the spread of Covid-19, apps like Google Maps and Uber have been collecting people’s location data for years, often without their explicit consent or knowledge. This certainly feels unacceptable. So how and why is Google able to constantly track our movements?

In her recent book The Age of Surveillance Capitalism, Shoshana Zuboff describes the “business model of the internet” as one where ‘free’ services are provided to billions of ‘users’ in exchange for behavioural monitoring. The data produced from this monitoring can be used to anticipate people’s actions. Zuboff consequently describes human experience as Google’s “virgin wood”, as this allows third parties to generate unthinkable profits. [1]

The greatest concern is the risk this poses to democracy. Inequality of knowledge translates into inequality of power. While most democratic societies have some degree of oversight of state surveillance, there’s almost no regulation of similarly-powerful private companies.

According to Zuboff, surveillance capitalists have mostly had a free run, with hardly any interference from laws and regulations. To a large extent, this is the result of lobbying by the oligopolistic tech giants. Specifically, this has been in relation to the TRIPS e-commerce chapter. However, in the US, the Federal Communications Commission has recently fined tech giants a combined $208M for the sale of location data to third parties, without users’ explicit consent. This feels like a big step towards limiting anti-democratic tech powers. 

However, we still see the uses of our mobile data every time we log into YouTube, Facebook or Instagram, and see content specifically catered to our search history and physical location.

Personal Freedom

Rather than being ‘users’, we are being used. In New Zealand, Google and other entities such as Facebook have used and sold our location data. The government may also, benevolently, use our location data to prevent the spread of Covid-19.

Unfortunately, location data can’t actually be ‘anonymised’. According to various studies, it is possible to re-identify 99.98% of individuals with 15 demographic characteristics using location data. We have already seen a catastrophic misuses of unknowingly purposed data. Most significantly, this caused a great threat to democracy when Cambridge Analytica used people’s data to manipulate electoral campaigns.

 So how can we feel confident that our mobile data and location tracking will be used to prevent the spread of Covid-19, and will go no further than that? 

New Zealand’s Data Privacy Laws 

As previously mentioned, TraceTogether is an opt-in app that users have to download themselves. This automatically creates a sense of safety for those who would prefer not to have any part in contact tracing in New Zealand.

Further, with growing awareness of data privacy issues around apps, people are increasingly interested in protecting their data. For example, there was a recent uproar and media scrutiny in regards to the Houseparty app, leaving millions of users’ information and data seemingly vulnerable to hackers. While public awareness is a step in the right direction, there also needs to be legal force preventing the misuse of people’s mobile data.

In NZ, the New Zealand Bill of Rights Act 1990 exists in order to protect people’s rights and freedoms, yet privacy is not expressly included. It instead holds the status of a value or interest. Additionally, there is very limited precedent in regards to data privacy at the common law level, and the Privacy Act 1993 is very narrow and requires supplementation. So is there actually any substantive protection for our data?

Thankfully, the Privacy Act is currently under review as recommended by the Law Commission's 2011 assessment, and the bill looks to be passed later this year. As it stands, the purpose of the bill is “to promote people's confidence that their personal information is secure and will be treated properly”. Clause 3 does however recognise that “other rights and interests may at times also need to be taken into account”. Contact tracking may be a perfect example of these other “rights and interests”.

Something this personal and controversial needs to be closely monitored. It is up to us to keep our eye out for misuses of our personal mobile data. However, the government’s plan for contact tracking certainly appears to be a fantastic weapon in the war against Covid-19.

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Featured image source: pexels.com

[1] Zuboff, Shoshana. The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (PublicAffairs, New York, 2019).