Test, Trace, and Isolate: COVID-19 and the Canadian Constitution

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Research paper looks at the potential benefits and limitations of using contact tracing apps

TORONTO, June 4, 2020 – As long as contact tracing apps are carefully constructed and the information they reveal is appropriately safeguarded, such apps may, in conjunction with actual human tracing, have a role to play in the country’s public health response to the COVID-19 pandemic, says a team of experts from York University, the University of Toronto and Ontario Tech University.

In a research paper entitled “Test, Trace, and Isolate: COVID-19 and the Canadian Constitution,” the seven authors consider the potential benefits and limitations of using contact tracing apps to identify people who have been exposed to COVID-19. They look at the privacy implications of different app design choices, and how those privacy impacts could be evaluated under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests.

“We know that contact tracing is essential to controlling infectious disease and has a central role to play in determining when we can safely loosen COVID-19 physical distancing measures and reopen the economy,” said Professor François Tanguay-Renaud of York University’s Osgoode Hall Law School.

“Before the country goes further down the digital contact tracing road, we wanted to look at several issues surrounding the use of contact tracing apps including how to integrate such apps and human contact tracing; possible infringement of privacy rights; and the need to balance various Charter rights and values.”

Tanguay-Renaud wrote the paper with Lisa M. Austin, Vincent Chiao and Martha Shaffer, University of Toronto Faculty of Law; Beth Coleman, University of Toronto, ICCIT/Faculty of Information; David Lie, University of Toronto, Department of Electrical and Computer Engineering and Andrea Slane, Ontario Tech University, Faculty of Social Science and Humanities.

The authors had an extensive hour-long briefing (via Zoom) with federal Justice Minister David Lametti last Friday. “I must say that he was very receptive and liked many aspects of our paper. In particular, the need to take seriously into account the effectiveness of any app in tracing contacts with COVID cases, when assessing the necessity and proportionality of any infringement of Charter-protected interests, such as privacy, that such apps would likely involve,” Tanguay-Renaud said.

The paper makes three major observations about the efficacy of contact tracing apps:

Improving the efficiency of human contact tracing

The public health goal of a contact tracing app should be to integrate with human contact tracing and make it more efficient rather than replace it, the paper notes. “We need to keep humans in the loop to ensure accuracy and to maintain the important social functions of contact tracing, which includes educating people about risks and helping them access social supports.”

Privacy choices

The paper points out that currently the most privacy-protective design for contact tracing apps makes use of proximity data (via Bluetooth) through a decentralized design, and that this method is receiving significant technical support from Apple and Google.

“However, this method fails to integrate with the human contact tracing system. Other options, such as the use of location logs or a centralized registration system, are more aligned with the public health goal of integration with human contact tracing but raise additional privacy questions.” What’s more, Google and Apple “prohibit app developers both from utilizing centralized methods and from utilizing location data.”

Constitutional balancing

Our privacy commissioners have discussed the need to assess these privacy choices according to the principles of necessity and proportionality, the paper notes. “The Canadian Charter requires that we choose the most privacy-protective app design that meets the public health goal, so long as the benefits of meeting this goal outweigh its deleterious effects on privacy. This requires a reasonable belief in the efficacy of such an app. It also requires an assessment of the nature of the benefits, which are not just the economic benefits of reopening the economy.”

Current restrictions on movement and work are themselves limitations of basic rights and liberties, the paper maintains. Individuals who self-isolate in situations of poverty, precarious housing, mental health challenges, abusive relationships, or other vulnerabilities face challenges that affect their security of the person. There are also broader effects on equality and human flourishing. “If contact tracing, enhanced by an app, reduces the need for restrictions in the form of self-isolation, it promotes other Charter rights and values (for example, security of the person), which must be balanced against the potential infringement of privacy rights.”

An electronic copy of the paper is available at: https://ssrn.com/abstract=3608823

About Osgoode Hall Law School

Osgoode Hall Law School of York University has a proud history of 131 years of leadership and innovation in legal education and legal scholarship. A total of about 900 students are enrolled in Osgoode’s three-year Juris Doctor (JD) Program as well as joint and combined programs. The school’s highly selective Graduate Program in Law is also one of the finest in the country and one of the most highly regarded in North America. In addition, Osgoode Professional Development, which operates out of Osgoode’s facility in downtown Toronto, offers both degree and non-degree programming for Canadian and international lawyers, non-law professionals, firms and organizations. Osgoode has an internationally renowned faculty of 60 full-time professors, and more than 100 adjunct professors. Our respected community of more than 18,000 alumni are leaders in the legal profession and in many other fields in Canada and across the globe.

About York University

York University is known for championing new ways of thinking that drive teaching and research excellence. Our students receive the education they need to create big ideas that make an impact on the world. Meaningful and sometimes unexpected careers result from cross-discipline programming, innovative course design and diverse experiential learning opportunities. York students and graduates push limits, achieve goals and find solutions to the world’s most pressing social challenges, empowered by a strong community that opens minds. York U is an internationally recognized research university – our 11 faculties and 26 research centres have partnerships with 200+ leading universities worldwide. Located in Toronto, York is the third largest university in Canada, with a strong community of 53,000 students, 7,000 faculty and administrative staff, and more than 300,000 alumni. York U’s fully bilingual Glendon campus is home to Southern Ontario’s Centre of Excellence for French Language and Bilingual Postsecondary Education.

Media Contacts:

Virginia Corner, Communications Manager, Osgoode Hall Law School of York University, 416-736-5820, vcorner@osgoode.yorku.ca

Gloria Suhasini, York University Media Relations, 416-736-2100 ext. 22094, suhasini@yorku.ca