This is one of a special series of posts exploring the public law implications of the COVID-19 pandemic. For more information on the Gilbert + Tobin Centre’s work in the area of public law and public health, see here.

BY CAROLINE COMPTON

This is the second of two posts AUSPUBLAW is featuring on the COVIDSafe App. Kate Galloway and Melissa Castan’s accompanying post is here.

Public health endeavours – for the purpose of this post, collective action to prevent disease – have occurred for at least 4,000 years, since latrines and sewerage systems were built at Mohenjo-Daro, Lothal, and Harappa. During the Middle Ages, British magistrates fought plague through burial regulations, banning sick travellers from entering their cities, and sealing plague victims – and their co-habitants – in their homes until death. The Sanitary Report (1842) declared “the primary and most important measures within the province of public administration are drainage, the removal of all refuse habitations, streets and roads, and the improvement of all supplies of water”. The report informed the UK 1848 Public Health Act, which established local Boards of Health. In more recent years, smallpox was successfully eradicated worldwide in 1979 and the fluoridation of drinking water has led to dramatic improvements in rates of tooth decay.

COVID-19 (SARS-CoV2), too, represents the sort of challenge that requires cooperative action. Public health is the consequence of aggregated individual decisions and the collective choices we make about how we order society, the services we collectively provide, and the aspects of our social and personal lives that we prioritise. While many institutions structure our lives, government – through town planning, health services, development and maintenance of infrastructure, and so on – is the primary vehicle addressing public health concerns in Australia. This post looks at two interrelated phenomena related to the Australian Government’s COVIDSafe app: the implications of a trust deficit on the ability to roll out the mobile-based contact tracing app, alongside the seeming acceptance of a government role in actually conducting contact tracing.

Contact tracing applications

Contact tracing is one of the primary methods for controlling infectious disease outbreaks – identifying people who may have come into contact with a patient, contacting them, and testing them for illness themselves. Contact tracing is a well-established practice: it has been used against tuberculosis, measles, sexually transmitted diseases, and various other novel illnesses including the 2002-4 SARS (SARS-CoV) outbreak and MERS. While contact tracing is relatively straightforward for those patients who have been duly confining themselves to home, one of the central challenges of returning to somewhat-more-usual is the much higher level of interaction with strangers. To this end, Prime Minister Scott Morrison has suggested that any “early mark” easing COVID-19 restrictions depends on uptake of the government’s COVIDSafe tracing app.

The design of the app is not particularly unusual. A number of nations, including Australia, are relying on apps that use Bluetooth to identify other, nearby users. After an infection, contacts meeting a certain threshold of duration and proximity are notified. Most of the variety in app design relates to the model for alerting contacts. In Singapore, accessing the information requires the user to upload the app’s logs to the Ministry of Health, which is responsible for reaching out to contacts. COVIDSafe operates in a similar way, with responsibility for reaching out to contacts (and therefore ability to access COVIDSafe data with consent) resting with state and territory health authorities. While details are yet to be released, in Germany the app will alert contacts of an infected person through an automated mechanism, without any government agency receiving contact information. Given Apple’s unwillingness to modify its Bluetooth security protocols in support of platforms that allow centralised data collection from COVID-19 positive app users, it is possible that Germany’s approach will work better insofar as iPhone users are concerned.

The general (though not total) consensus on COVIDSafe is that the security of the data (in purely technical terms) seems solid. No location information about users is retained. Anonymous identifiers update every 2 hours. All information is automatically deleted 21 days after collection, and anyone who wants the app to stop collecting information in particular contexts can do so by turning off their Bluetooth connection. Obviously, there are exceptions for individuals in specific situations – for example, domestic violence victims with tech savvy abusers – and potential human rights and privacy concerns related to subsequent use of the data.

Yet many people seem to be rejecting the app because they simply don’t trust the government – whatever the quality of the technology or rights-protective legislation. A cursory review of social media and newspaper comments is suggestive of the trust-based issues behind the lack of uptake:

[In response to the criticism that people willingly download Facebook and other commercial apps] Very nice, but guess what? Mark Zuckerberg can’t lock you up, or subject you to a secret trial for exposing their illegal activities. For starters.

“Trust me.” Ahh… with all due respect Mr. Prime Minister, I don’t think so. That boat sailed long ago.

The intention is to slowly increase the privacy erosion of this app. What looks clean and innocent now, will be a very different beast once they get acceptance. Facebook, Twitter, Zoom, Whatsapp, YT, just about everything has had privacy scope creep. This will too. #trojanhorse

Trust in government

While we seem very willing to share our location data with digital companies in return for useful information (over 75% of US smartphone owners regularly use navigation apps for example), many in the West seem rather more reticent where the benefit is public, not private. The COVIDSafe app requires at least 40% take up to “be effective”, and it appears that many Australians simply don’t trust the government to either get the technology right or not to use the information to facilitate surveillance for other ends. We are far from alone in this regard. Across the OECD, only 43% of citizens trust their national government. In the USA, only 17% of citizens say they can trust the national government to do what is right “just about always” or “most of the time”. European attitudes towards their governments and public institutions parallel those in the USA. It seems fair to say there is a widespread and embedded lack of trust in the political and economic elites in Western countries.

In situations like the current pandemic, where we need people to trust the government to ‘do the right thing’ for public, not private, benefit, these low levels of trust have significant ramifications. While trust in authoritarian states is harder to determine, in at least some states – including China, Saudi Arabia, and United Arab Emirates – surveys suggest a majority of citizens generally trust their government. However, in situations where citizens do not trust their government, more authoritarian or controlling states are better able to compel compliance with public health mandates. Trust matters far more when your model of governance depends on the public being willing to do what you ask. This obviously makes contact tracing far, far easier.

The following examples demonstrate what is possible under conditions of either trust or great control, and how several extraordinary successes limiting the spread of COVID-19 have involved significant intrusions by the state into private life. In Taiwan, the Department of Cyber Security is working with telecommunications carriers to monitor the phones of people required to isolate themselves. Anyone who leaves home or turns off their phone is contacted by the police within 15 minutes, and officers call patients twice daily to ensure that they and their phone are co-located. In South Korea, health officials used mobile tracking data, credit card purchase data, and security camera footage to track patient contacts. Hong Kong requires people under quarantine to wear location tracking wristbands; China is limiting movement based on an app that collects data on user location which, when compared to data on new cases, gives users a risk rating for potential infection.

Clearly, if the Australian population is loath to download an app with – relatively speaking – limited surveillance capacity, these more heavy-handed measures are unlikely to find purchase. Yet returning to crowded restaurants, buses, and movie theatres is predicated on Australia’s ability to control the spread of COVID-19, and the best epidemiological practices we currently have mandate contact tracing. Given most of us walk around with a GPS device in our pocket, it seems ludicrous not to take advantage of such potentially transformative technology.

Public utility and the role of the state

One way around the broad discontent about the government “download(ing) my information” and the possibility of misuse of any data would be to ensure the government simply didn’t have access to contact data. Should Australia be following Germany’s lead with decentralised notification of contacts, as Vanessa Teague suggests, or sticking to notifications being funnelled through health authorities? A decentralised notification system records contact information and when an app user tests positive, they can alert their contacts via the app itself, without the information reaching a government agency. Given this would serve as a simple fix to many of the current concerns about the app, it is interesting that there hasn’t been a loud debate in Australia about the possibility of a decentralised app, as occurred in Europe.

The debate over who should ‘hold’ or disseminate information about contacts cuts to the heart of intersection between new technology and the role of government. Acknowledging that, presumably, technologically-informed contact tracing will complement the extraordinarily labour- and time-intensive processes currently in place, possible design options require us to ask if we would rather a reduction in the utility associated with being able to contact potential patients quickly and directly, in favour of privacy and restraint.

With Apple and Google currently aiming to facilitate decentralised contact tracing via their joint platform, the question arises of whether the state need even be involved in app development. This raises the stakes from a question about any health authority’s ability to contact potentially exposed persons to one which asks: are we comfortable deferring to the private sector to deliver this service, or defining the limits of government-directed public health endeavours, by limiting the possible success of government tracing models private companies are ideologically opposed to? While late-stage capitalism has led to the transfer of de facto authority of state responsibility to private companies across many aspects of government administration, data and technological transformation seem to promise an ever-faster acceleration.

That we haven’t pursued – or even loudly discussed – a decentralised contact tracing app might suggest that the Australian public considers state involvement in all aspects of public health to have some value, even if potential overreach concerns us. Alternatively, it’s simply not something we’ve turned our minds to. In either case, if we want the government involved in technologically-mediated disease tracking while maintaining our current consent-driven approach to the use of technology, the trust deficit must be overcome. Alternatively, we can bypass government involvement altogether. However, this alternative challenges the state-citizen relationship in a very different way as it demands institutional innovation around the collective action problem that infectious disease presents. No doubt rapid technological innovation, alongside the impact of anthropogenic climate change and increasingly severe emergency events will necessarily force us to turn our minds to questions about the scope of government responsibility as a matter of course.

Caroline Compton is a Research Associate on the  ‘Data Science in Humanitarianism: Confronting Novel Law and Policy Challenges‘ project at UNSW

Suggested citation: Caroline Compton ‘Trust, COVIDSafe and the Role of Government’ on AUSPUBLAW (11 May 2020) <https://auspublaw.org/2020/05/trust,-covidsafe,-and-the-role-of-government>