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CONTACT TRACING APPS: AN INFRINGEMENT OF HUMAN RIGHTS?

Updated: Aug 26

Introduction

Covid-19 was declared a global pandemic on the 12th of March. The World Health Organization came out with guidelines containing clinical and non-clinical to control the spread of the virus. The non- pharmaceutical measures included contact tracing surveillance and management mechanisms. These activities are done with the support of AI, facial recognition and Geo-localisation apps. In the rush of creating such apps, some countries have made their citizens victims of Human Rights violations. Contact tracing apps have been brought in order to fulfil the state’s obligation to protect the right to health and right to life of all people. However, in a bid to achieve the same, the state cannot ignore other human rights violation, due to their inalienable nature. This article discusses the issue of human rights violations involved in the usage of such contact tracing apps.

Human rights Violation caused by the use of Contact Tracing Apps

1. Right to privacy and respect for family life

These apps result in mass sharing of sensitive personal information such as name, address, current position, medical records etc., between people and central authorities. In Bahrain, Quwait and Norway the app has high sensitive personal information which includes the name, address, current location, health status and national ID number of citizens. The information is stored in a centralized database. It uses location data as well as Bluetooth and processed proximity data centrally rather than on individual smartphones.

The right to privacy is the most directly impacted human right. Article 17 of the International Covenant on Civil and Political Rights prohibits states from intervening arbitrarily or unlawfully in the private sphere of individuals. Information about an individual’s location and health can pertain to such a private sphere. Unregulated usage can lead to stalking, scams, identity theft or oppressive government tracking — and could undermine trust in public health efforts. The vast majority of contact tracing apps used by governments lack adequate security and are easy for hackers to attack, according to a recent software analysis by Guard square.

Any leak from the data which declares the details of Covid-19 affected people has high chances of facing discrimination and social stigma. There are instances where people have undergone verbal assaults in public places, denigrating campaigns on social media, the boycott of their business activities. The instances are not just limited to the person but extend to his/her/their families as well.

The data cannot be forgotten completely in this technological era and it is feared that it can be repurposed in the future by private companies. Mostly all the countries have centralizes surveillance in contact tracing apps which gives out more personal information as compared to a decentralised setup. Moreover, the centralized data usage further increases the risk as this data could possibly be used for purposes other than corona virus tracking by authoritarian governments, termed as a Mission Creep.

2. Unequal access to resources

Discrimination on any grounds is unlawful under Article 26 of the International Covenant on Civil and Political Rights. Use of contact tracing apps puts people who do not own smartphones at a certain disadvantage leading to unequal access to health information. Their right to information is being compromised due to lack of access to smartphones which creates an unreasonable ground of discrimination. The study suggests that low-cost smartphones have inherent security problems making them prone to surveillance and hacking. As a result, a large proportion of the population is prone to privacy risks and leakage of information than others, without any fault of their own.

Information captured here acts like a double-edged sword as it not only infringes on citizen’s right to privacy but is also representative of the weak and inadequate data set. This misleading information will create a false sense of security and will lead to a reduction in the steps taken against the public health emergency.

3. Right to liberty

The contact tracing apps’ algorithm usually works by alerting people that they have been in high-risk contact with someone who has Covid-19 symptoms. This constant surveillance can be a restriction on the freedom of movement or deprivation of liberty. The apps track people’s movement in public and private spaces which is also a serious threat to the right to remain anonymous. In China, the app draws out the history of online payments so that local police can look for those who break quarantine rules.

People can self-report their symptoms on these apps which can very well be a false claim due to various technological reasons. However, the affected person has to undergo 14 days of quarantine just on the basis of app alert which is a disproportionate violation of the liberty of individuals as an app alert does not necessarily mean that the person is in danger of having caught the virus.

4. Freedom of speech and expression

If there is anonymity, people feel free to express their ideas without any inhibitions. But with state surveillance throughout, people will take precautions on how they interact with others and how much they voice their view. There is a bigger threat to journalists, human right activists, and other minority communities who are critical of government ideologies. Contact tracing apps that monitor interactions and proximity in the present times can be used to monitor protests and social movements in the near future.

Legality, Necessity and Proportionality of Contact- Tracing apps

The rights provided in the International Covenant on Civil and Political Rights or in other state legislatures are not absolute and can be limited in extraordinary situations as per Article 4 (1) of the International Covenant on Civil and Political Rights For such limitation to exist, any Covid-19 measure must qualify the legality, necessity and proportionality test as per the United Nations Human Rights Council Guidelines.

Legality-There are various countries in the world which lack strict data protection through contact tracing apps in these countries can be legally protected and can be detrimental to the human rights of citizens. In furtherance of the human rights violations listed above, the mandatory usage of contact tracing as has already been done in a few countries will heighten these human rights violations.

Proportionality- Firstly, there is a valid question of the success of such apps when there is low testing of the covid-19 virus in most of the countries. Secondly, the usage of such apps in the third world countries is trivial as it requires a certain level of digital awareness, an appropriate device and an operating system which is very low in the third world nations. For instance, in India, the percentage of population that uses a smartphone is only 18%. Thirdly, studies show that to have epidemiological significance, at least 60 per cent of the population should use such contact tracing apps. Without access to smartphones, this will be an impossible goal to achieve.

Necessity-Contact tracing apps should only be used if there is no such alternative which is in consonance with our fundamental rights. However, the usage of contact tracing apps has not shown positive results. These apps were meant to play a game-changing role in limiting the spread of the corona virus. But till now they have had a limited impact. Experts are questioning the potential of these apps to detect actual cases. The software of tech giants like Apple and Google, for contact tracing apps is not even widely accepted because of the limitations it imposes on government using its technology . With millions of corona virus cases, contact tracing is no more a good measure.

Conclusion

Even if all other risks are averted by proper construction of the apps abiding all data privacy concerns, the normalisation of contact tracing apps and their usage in the future will continue to remain a high risk potential. It has also been mentioned as a probable risk by the Secretary General of United Nations. As feared, China has already proposed a permanent version of the contact tracing app to curb the spread of the virus in future. To use contact tracing apps, it is essential that transparency is ensured at all times as emphasized in the Joint Statement issued by more than 100 civil society organizations via Amnesty. To ensure that digital surveillance does not become the new normal, contact tracing apps should be a time-bound measure.

This article has been written by Shivi Chola who is a second-year law student at GNLU, Gujarat.

DISCLAIMER

Human Rights Law & Policy Review blog is strictly and entirely intended for educational purposes. The opinions expressed in any blog post are solely of the authors and do not reflect the views of any member of Human Rights Law & Policy Review. Since the website is open to public discussions and is updated every 12-15 hours, removal of any objectionable content might take up to a day. Any information provided does not constitute legal advice in any form.

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