Coronavirus: The COVIDSafe tracing app, your privacy, and the role of law

In 2020, human rights law is being tested to its limits.

In March this year, the World Health Organisation declared that an outbreak of the viral disease COVID-19 had reached the level of a global pandemic, and called for governments to take urgent action to stop the spread of the virus.

The role of law in this health emergency has been central. It's permeated all aspects of our lives. In Australia, executive directions have been issued that require the closing of non-essential businesses, placed limitations on public gatherings, and severely restricted the movement of individuals.

These measures have serious implications for various human rights protections, including the right to liberty, freedom of association, freedom of movement, and the right to privacy.

Normally, such restrictions would be unlawful. However, as I have noted elsewhere, a declaration of a state of emergency allows governments to enact restrictive measures in the interest of protecting public health.

For instance, Victoria’s state of emergency declaration gives state authorities wide powers under its Public Health and Wellbeing Act 2008 to issue directions to restrict people’s movement and regulate public behaviour. This is important, because officially declaring a state of emergency allows exceptional powers to be used in exceptional circumstances.

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Read more: The new transparency: smartphones, data tracking, and COVID-19

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Because this emergency is testing the limits of our human rights protections in Australia, it represents an opportunity to consider how our legal system functions when society is tested. And, in particular, what the operation of the COVID-19 laws say about how human rights are protected in Australia.

In some ways, COVID-19 presents new challenges that can be met by "old solutions"; that is, our existing principles and oversight mechanisms. Importantly, however, COVID-19 also presents some new challenges that require human rights law in Australia to adopt new approaches and develop solutions.

Here, I want to highlight one particular aspect of COVID-19 that demonstrates we require some rethinking about human rights protections in Australia – the recent debates about mobile phone tracing to assist in controlling the COVID-19 outbreak.

A new challenge that requires a new solution

On Sunday at 6am, the federal government released, and urged Australians to download, the COVIDSafe app to help with coronavirus contact tracing. By 10.30 that night, one million Australians had voluntarily downloaded it. By yesterday morning, that number had risen above two million.

The app works by tracing every person who has been in contact with a mobile phone owner who has tested positive for COVID-19 in the previous few weeks. It does so using Bluetooth smartphone connections to record who has been near a person for 15 minutes or more (the period defined as a contact).

Obviously, this raises serious concerns for privacy, even though installing the app is voluntary.

International human rights law is clear that state parties have an obligation to protect everyone against arbitrary or unlawful interference with their privacy, family, or correspondence (Article 17 of the International Covenant on Civil and Political Rights).

This is where the COVID-19 emergency represents a new challenge, which human rights law must meet.

Many would probably agree that certain fundamental limits should be put in place to regulate such a surveillance tool.

First, any use of data should only be used for the purpose of responding to the COVID-19 pandemic, and cease once the pandemic is over. In this regard, the tracing app raises the issue of "mission creep" – that the government will use it for COVID-19 purposes, but continue to access the data once the pandemic is over.

Second, the data must be properly and safely stored. Here I note that there have been some concerns around how the Australian government is going to protect data privacy, particularly given that the contract for storing the app's data is going to a US-based company (Amazon).

Third, these technologies must address risks in relation to discrimination against racial minorities and marginalised populations.

Most people in Australia have never undergone such extensive personal restrictions on our freedoms as we are currently experiencing.

But on a more conceptual level, I would argue that we must rethink how privacy and technology interact. This is something that's been highlighted by the COVID-19 emergency, but will remain a problem after that is resolved.

There are two aspects of concern here that require new legal approaches.

• First, there is often a lack of transparency in how technology is implemented in Australia. This may be a problem that can be remedied by a public education campaign to ensure that those affected by technology have at least a rudimentary understanding of how data is used by authorities, and an understanding of their rights.
• Second, given the nature of the information many people hold on their phones (photos, intimate messages etc), it could be argued that the phone is an extension of ourselves and is part of our private life, even perhaps part of our identity. This is because we reveal information that is reflective of our personal attributes.

For instance, the types of dating apps on a person’s phone will reveal their sexual identity. Other information and apps may reveal an individual’s political and religious beliefs.

Mobile phones are therefore not simply "telecommunications devices". This means that human rights law must reconceptualise the concept of privacy and a "private life" to deal with this societal fact.

In terms of specific changes to existing regimes, I would highlight that Australia does not have a statutory, legally-enforceable right to privacy. Therefore, as the Castan Centre recommended in a recent submission to the Human Rights Commission’s Inquiry on Human Rights and Technology, a tort for serious invasion of privacy should be adopted. This would allow for better protection against intrusion and misuse of private information, and serve as an accountability mechanism for governmental actions in this area.

Implications for human rights in Australia

Here I've discussed a specific example of an area in which Australia needs to reform its protection of human rights, specifically the right to privacy.

However, I would argue as a more general proposition that Australia relies heavily for its human rights adherence on oversight and accountability mechanisms (such as parliamentary processes). While some of those have continued to operate, it's becoming increasingly clear that we require greater entrenchment of our rights than our legal system currently provides.

The Castan Centre for Human Rights Law has long advocated for a federal human rights charter. When we've overcome COVID-19, I would argue that this should happen.

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Read more: Migrant visa holders and the pain of family separation in a time of coronavirus

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I also want to make some broader reflections about the implications for society of the current epidemic.

Most people in Australia have never undergone such extensive personal restrictions on our freedoms as we are currently experiencing.

It's my hope that this experience may lead us to have some insight into the plight of others – to deepen our understanding of the human rights abuses that many marginalised and vulnerable people in Australia and elsewhere have faced, and continue to face today.

The government has said many times that we must come together as a nation. This is true. But we must also reflect on inequality and disadvantage in our society, and come together as a nation to ensure our law protects us fairly and equally from those problems.