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Contact Tracing and the Law

NHS Track and Trace App

 Six months on from when the U.K went into lockdown and COVID-19 is still very much a hot topic. In this article I will not attempt to dissect every law and all the guidelines surrounding COVID-19, it would take pages and pages and by the time it was published, half of it would be out of date. Never has the law moved so swiftly. This article will briefly attempt to address the laws around the new contact tracing app, live from the 24th of September.

What is the NHS Test and Trace contact tracing app?

The concept is fairly simple, the app detects if you have been in contact with someone who has tested positive for coronavirus, and if so you will receive a notification asking you to self-isolate, thus stopping the spread of the virus. It will also tell you if an area is high risk, features a symptom checker and tells you how to book a test. 

How many people have downloaded it so far?

 As of the evening of Thursday the 25th, Android users alone account for over 1 million downloads. This does not include iPhone downloads, so the real figure is likely to be very much higher. 

Do I have to download it by law?

 It has been stressed downloading the app is entirely voluntary, and it is the responsible thing to do for society. From September 24th, hospitality venues will by law have to display an NHS test and trace QR code, and they must take and keep personal details of those who do not have a smartphone capable of scanning the code. This applies to pubs, hairdressers, beauticians, dress fitters, tattooists, piercers, restaurants, cinemas. They face a £1000 fine for non-compliance, rising to £4000 for repeat offences. 

 However, there is no protection if your employer asks you to download it before coming to work. It could be argued if your employer needs to see it and you’re excluded from large sections of society without it, it isn’t really voluntary. 

Is my data safe and does Test and Trace comply with GDPR and data protection laws?

The Government has assured users the app is private, and data is safe.

However, in July, The Department of Health conceded, the initiative to trace contacts of people infected with Covid-19, was launched without carrying out an assessment of its impact on privacy. The Open Rights Group (ORG) says the admission means the initiative has been unlawful since it began on the 28 May. The government stresses there is no evidence of data being used unlawfully. The test and trace system involves sharing sensitive personal information. This can include the users name, date of birth and postcode, even names and contact details of recent sexual partners. ORG had threatened to go to court to force the government to conduct a data protection impact assessment (DPIA) - a requirement under the General Data Protection Regulation (GDPR) for projects that process personal data. A letter from the Department of Health to the group confirmed that a DPIA was a legal requirement and had not been obtained. Given that Article 35 of the GDPR states a DPIA must be carried out ‘prior to processing’, this amounts to an admission that the government has broken the law. The ORG also achieved a win in terms of how long data is stored for, successfully reducing the 20 years to 8 years. 

Remaining vigilant about data protection even in the middle of a pandemic is important to ensure people trust the app and will download it. Concerningly, there have already been reports of test and trace details being used inappropriately, including reports of personal details being used to harass women. It should be noted these have been incidents of filling in forms and handing them in to people, and the app should stop these incidents occurring. 

Furthermore, the government website was updated September 24th with details of the DPIA (this can be found here), so it may reassure that it looks like this assessment has now been carried out, and the government has repeatedly pointed out the urgent pace it has been required to work to combat the pandemic. It should also be noted the original version of the app was scrapped entirely amid privacy concerns and technology malfunctions, and the Information Commissioner’s Office (ICO) has acknowledged the technology appears to be aligned with data protection principles. 

Will it tell all my contacts I tested positive; how will this protect my privacy?

Users can anonymously record if they test positive for the virus. This then sends an alert to those they have been in close contact with without disclosing who has tested positive, requiring them to self-isolate.

Are there any other risks?

 One great feature of the app is, in response to domestic violence charities who were concerned about abusers checking phones, you can delete visited places from your journal.  However  another concern is the small chance contact tracing may be used maliciously. That ex that hates you might get a positive test and say they’ve been with you, forcing you to isolate or get a test.

How do we stop that and are there any legal consequences for those that do this?

At present it seems we can’t stop it and there are no legal sanctions for those that do because a positive test can be reported anonymously. We wanted it to be private and this is potentially an unwelcome side effect of that privacy. Like all systems, the potential for abuse is there.

Is it effective at tackling the pandemic?

The Health Secretary, Matt Hancock, has called the app an important step forward in fighting the virus. Academics have stated for the app to be effective they believe 60% of the population must download it. As we potentially enter a second wave, contact tracing has the potential to save many lives.

What if the app tells me to isolate, am I breaking the law if I don’t?

If you’re contacted by NHS track and trace you must isolate by law, yet if the app tells you to self-isolate, whilst you definitely should, there is no legal requirement to do so. There is no way to check who has been told to isolate via the app, so it would be almost impossible to impose the £1000 fine that The Department of Health say those who do not isolate should face.

In conclusion, whilst tracing apps are intrusive by nature and there are certainly some ethical questions surrounding their use, the government has been clear this is an important part of tackling this pandemic. The government has endeavoured to reassure users the app is as safe as it can possibly be and it has faced some pretty intense scrutiny before being released. I hope this article helps you to make an informed choice. 

By Chloe Lydell.

News Reporter

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