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Red flags raised over government sharing personal data of COVID-19 cases with first responders

Thursday, April 30, 2020 @ 9:30 AM | By Amanda Jerome

Legal organizations have issued an open letter to Ontario’s Solicitor General, Sylvia Jones, addressing concerns they’ve raised over the government’s decision to “provide a range of first responders, including police services, with the names, addresses and dates of birth of individuals who have tested positive for COVID-19.”

The letter, dated April 23 and written on behalf of the Canadian Civil Liberties Association (CCLA), the HIV & AIDS Legal Clinic Ontario (HALCO), the Black Legal Action Centre (BLAC) and Aboriginal Legal Services, noted that the government's emergency regulation O. Reg. 120/20 authorizes “the disclosure of COVID-19 status information only to the extent ‘necessary in order to prevent, respond to or alleviate the effects of the emergency.’ ”

“We have not found sufficient explanation of how providing this information to first responders, and police in particular, is useful, much less necessary, in responding to the present emergency,” the letter added.

The letter stressed that “there is a real risk that using this database will create a false sense of security when first responders are interacting with individuals who have not been flagged, thus serving to create rather than mitigate danger.”

The letter also noted that the Information and Privacy Commissioner of Ontario was “opposed to the emergency order authorizing this disclosure because the government was not able to demonstrate that the order was necessary to enhance public safety.”

“The regulation was passed despite their objections,” the legal organizations stressed.

The letter then called on the government to address six questions regarding the objective, privacy protection and complaint measures surrounding the use of this data.

On April 27, the Criminal Lawyers’ Association (CLA) also issued an open letter to the solicitor general echoing the concerns raised by the legal organizations.

“The problems outlined in the April 23, 2020 letter give rise to serious questions about the utility, let alone the necessity, of providing infection status information to police. For this reason, we call upon the government to explain and justify the extraordinary privacy violations occasioned by O. Reg. 120/20's authorization of disclosure of personal health information directly to law enforcement,” the CLA’s letter stated.

Abby Deshman, director of the Criminal Justice Program at the CCLA

Abby Deshman, director of the Criminal Justice Program at the CCLA, said that private information is “sensitive for a wide variety of reasons, but here we’re specifically talking about medical information, which is some of the most personal information that officials have on the population.” “I think it’s even more of an imperative to protect the privacy rights of citizens in that context,” she stressed.

Deshman noted that this could “certainly” set a precedent for the government collecting and sharing data in other situations in the future.

“We, of course, are in an unprecedented health crisis, but there are many crises that impact smaller segments of the population in different ways and I think that we need to be very mindful of the legal precedents that are set now,” she explained.

“Sometimes when the bar is moved during a crisis, it doesn’t always move back. A really easy example is 9/11. There were all kinds of enhanced security screening and terrorism legislation that came into effect during 9/11, obviously a singular crisis, that persists with us today,” she added.

Deshman said the CCLA has not received a response to its letter yet, but that the association is speaking with the other organizations that signed the letter to discuss “next steps.”

Khalid Janmohamed, staff lawyer at HALCO

Khalid Janmohamed, a staff lawyer at HALCO, said it’s important to note that the legal organizations that authored the letter “recognize that it’s crucial to protect the health of people on the front lines of the pandemic.”

“By raising the concerns that we have about this regulation and policy response, we don’t in any way mean to minimize the importance of that goal to protect those folks. But that said, it’s also crucial in the context of a pandemic to assess and scrutinize government action to make sure that it’s based on evidence, that it’s rational, and in that it actually achieves the aims and benefits in some way, and that it intrudes on the rights of citizens as minimally as possible,” he explained, adding that when laws intersect with the state’s coercive power, the need for scrutiny is even more heightened.

Janmohamed noted that HALCO has some experience with similar situations through its HIV advocacy.

“In Canada we’re one of the world’s leaders, and this is not a good thing, in terms of prosecuting and convicting people living with HIV for HIV non-disclosure,” he said, noting that from a public health perspective, “there’s evidence to suggest” that if the goal is to “get people tested so they can get into treatment if needed, a criminal response can actually be counterproductive.”

“It can actually discourage those things, so what we need is a public health response to these kinds of issues, not a public policing response,” he stressed.

Janmohamed hopes that this won’t set a precedent for the government sharing health data with first responders, and he stressed that it “ought not to.”

“We’ve seen COVID-19 being termed a ‘once in a century pandemic.’ This is a situation that most people alive today have not witnessed or experienced. COVID-19 spreads easily through day-to-day contact and interactions and it’s potentially fatal. So, the circumstances we’re in are highly unusual and unique and in fact, a lot of coverage has referred to this as an ‘unprecedented situation.’ So, what we’ve seen is also an unprecedented response. We’ve seen laws that have been passed very quickly, that are extremely coercive, that apply very broadly to broad populations of people, and even in the context of this pandemic, the rationale for that kind of information sharing based on what we know of this regulation and policy so far, we think is quite weak,” he explained.

Janmohamed stressed that it’s also important to consider the communities that are already disproportionately targeted by police, such as Indigenous, racialized or homeless populations.

He said this concern “applies to this policy response and we need to think about that whenever we think about expanding or broadening police powers: who are the people who are most likely to be affected by that?” 

Stephen Warner, press secretary and issues manager for the Office of the Solicitor General, issued a statement to The Lawyer’s Daily that said “first responders put their lives on the line every day to protect Ontarians, and they are at great risk of being directly exposed to COVID-19 as they fulfil their front-line duties.”

“That’s why it’s critical that we protect and support our front-line responders who are fighting to protect us from this virus every day,” he added.

Warner explained that this “time-limited emergency order temporarily enables first responders to obtain COVID-19 positive status information from individuals with whom they are coming into contact. The information is limited to an individual’s name, address, date of birth and whether the individual has had a positive test result.”

He also noted that “strict protocols are enforced to limit access to this information and it is used only to allow first responders to take appropriate safety precautions to protect themselves and the communities they serve.”

“During this outbreak, it is imperative that our first responders have access to this essential information when they are preparing to respond to an emergency in order to protect themselves and stop the spread of COVID-19,” he added.

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