They do so by mandating information to the affected party at the point-of-collection and by requiring public information. The bills also both heighten transparency. Further, the proposed statutes mandate data security, which is important as any information collected by these apps will be a target-of-interest for hackers, domestic and international. Both agree on the need for data minimization, which means collection of the least amount of information. This proposed statute closes several gaps in the Wicker bill and is generally preferable to it. The second bill, released more recently, is the “Public Health Emergency Privacy Act,” from Senators Richard Blumenthal (Connecticut) and Mark Warner (Virginia). Currently, there is only a press release in place and not a bill, but the contours of this Act are already in view. The first bill is the “COVID-19 Consumer Data Protection Act,” a proposal introduced by four senators led by Roger Wicker (Mississippi). Finally, regulation should be attentive to the use of these devices in workplaces because this context will be particularly prone to illusions of consent for COVID data collection.Īs for the two competing federal bills, both have plusses and share large areas of agreement. Massachusetts (1905), “the social compact” requires that “all shall be governed by certain laws for ‘the common good,’” including by laws for the protection and safety of the population. It should also reflect that public health during a pandemic is a priority. Before examining the two bills, however, it makes sense to think through first principles.Īny regulation of a COVID-tracking app should be pragmatic and proportionate. Fortunately, there are now two proposals for such a law before the Senate. In responding to the privacy challenges of COVID-tracking apps, however, the need is to look beyond concepts of “voluntariness.” Instead of falling back on illusions of consent, we need a federal law that regulates use of COVID-19 tracking apps. In the employee handbook, a company tell folks about how the keycard collects data it then distributes the keycards and mandates their use and, presto, consent is granted each time an employee swipes the device at an entryway. A similar approach is taken by workplaces that require keycards to enter office spaces. For example, “notice-and-choice” is frequently used to justify email monitoring at work employers inform employees in advance of their policy and the use of a workplace email system is then considered to represent consent to the policy. In many areas of information privacy law, we’ve already been down the path of justifying monitoring through the fiction of consent. Even though the use of the app is voluntary, in the sense of not being government-imposed, its use is part of a take-it-or-leave-it situation. In these situations, a reliance on consent is illusory. The future may be one of “no app, no entry” or even “no app, no job.”
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Rather, the critical issue is how government and the private sector will restrict access to spaces and opportunities based on whether or not one “consents” to the use of an app or other monitoring device.įor example, an employer may block entry to a workplace unless an individual has an app on his phone that uses Bluetooth to track location, or copies a QVC code at a building’s entrance into an app. No one is proposing that approach in this country.
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In the United States, however, the question is not whether the government is going to require the population to download an app to monitor their movement and contacts. Nations in this camp include Australia, Austria, Finland, Germany, Ireland, Israel, the Netherlands, and the United Kingdom.
The rest of the world is following the voluntary route. Mandatory contact-tracking apps are in use in China, India, and Turkey.
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Experts, including the Bloomberg School of Public Health at John Hopkins, view this technology as a necessary boost to manual contract tracing by public health officials.Ĭountries are currently split into those where the government requires the use of these apps and those that do not.
The apps do so by drawing on information about the location of a person’s mobile phone and its proximity to other devices. COVID-tracking apps help identify parties with whom a COVID-infected person had contact.
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