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Contact tracing apps could hurt vulnerable Canadians: defence lawyers

Monday, June 15, 2020 @ 12:37 PM | By Terry Davidson

Last Updated: Monday, June 15, 2020 @ 4:00 PM

Defence lawyers are warning that the use of contact tracing apps — whether made mandatory or voluntary — could further marginalize vulnerable Canadians unable to afford smartphones or understand the technology.

The Criminal Lawyers’ Association (CLA) is echoing the country’s privacy commissioners and others in flagging potential problems when it comes to digital tracing technology being used to help track the spread of COVID-19.

The group has released its position statement on the matter, stating that the use of digital tracing must have oversight, be strictly limited to public health purposes and restricted to “anonymized, non-location digital tracing applications” so as to thwart the potential for “serious rights violations.”

But something else on the CLA’s radar is how the technology will impact vulnerable populations — those not possessing smartphones due to poverty or technological illiteracy, for example.  

Jill Presser, co-chair of the CLA’s criminal law and technology committee

Toronto lawyer Jill Presser, co-chair of the CLA’s criminal law and technology committee, says that, mandatory or voluntary use of the technology notwithstanding, not having access to a tracing app could lead to collateral consequences for these Canadians.

“It is possible that while the government doesn’t make a tracing technology mandatory, it’s possible that having an app [would be] necessary to enter certain places or access certain services,” said Presser. “So, maybe, for example, a mall that is privately owned, or a store that is privately owned. … Notwithstanding that a tracing technology is voluntary, it may be that certain places, spaces or services prohibit access to those who haven’t voluntarily downloaded the app. So, you could have no requirement of mandatory use … but still have an unequal and disproportionate impact on people who are unable to access an app.”

Presser spoke of recent statistics detailing the haves and the have-nots.

“It’s a surprisingly large percentage of the Canadian population who don’t have access to a smartphone of some kind. We’re worried [because] … whether an application is mandatory or voluntary, if there are going to be limits on access to public spaces, public benefits or government services based on whether someone has downloaded the app or not, this could disentitle people who are socioeconomically disadvantaged from accessing some of those spaces, services or supports. … We are … signalling that there may have to be additional public health supports or other workarounds provided to those who can’t or don’t or won’t use an app, whether it’s because of socioeconomic disadvantage or technological illiteracy.”

In its statement, the CLA points to research by the Consumer Technology Association that suggests 14 to 19 per cent of Canadians age 18 and older do not own smartphones.

“Mandatory use of contact tracing applications will disproportionately impact already marginalized populations, including individuals experiencing poverty, addiction and mental health issues, who are less likely to have access to the smartphone technology required to run contact tracing apps,” states the CLA.  

When asked if there could be constitutional issues due to someone being denied something due to not having an app, Presser said she can see potential problems.

“It’s a tough question, and I think the answer would have to be context-based. It would depend on what the place or service or business was and what the parameters of their rules around contact tracing adherence were. I think if we’re talking about public services and amenities, yes, there may well be a claim for a breach of equality if somebody is being denied access to a public benefit or a public space or a public service.”

But things become “more complicated when we’re talking about private businesses,” she said.  

“And then there are a whole bunch of entities that are quasi-public. … Are they private? Are they public? A mall might be privately owned but it is a space that is open to all, theoretically. What about universities? What about hospitals? What about doctors’ officers? … These are really complex issues.”

On May 1, Alberta became the first Canadian jurisdiction to launch a contact tracing app, which has been made voluntary and free to download.  

According to the Alberta government, ABTraceTogether “is a mobile contact tracing app that helps to let you know if you've been exposed to COVID-19 — or if you've exposed others — while protecting your privacy.”

On May 7, the federal, provincial and territorial privacy commissioners issued a general joint statement calling for the protection of people’s privacy by making sure contact tracing apps are voluntary, limited to public health purposes, fully consensual and subject to transparent policy around how information will be used, who will have access to it, where it will be stored and how it will be secured.

Like the commissioners, the CLA hopes that information collected through any tracing app is used for public health only. For example, Presser hopes such information is kept out of the hands of law enforcement.

With this, she points to an app recently adopted in Australia.

“Australia has adopted an application called COVIDSafe, and they have a piece of standalone legislation that governs the data collection scheme … and it’s got very clear legislative measures to prevent any use of the data collected other than for public health services. They go as far as to make it an offence for anybody to access, keep, share, collect [or] disclose the COVIDSafe information except for public health purposes. So, law enforcement is not to have access to that data under any circumstances, for any reason.  And they go so far … as to say even where law enforcement may have a legitimate, legislated or … lawful authority to access a person’s phone or mobile device and the information on it, that still doesn’t entitle them to access COVIDSafe data on that phone.”

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