COVIDSafe, Australia’s Digital Contact Tracing App: The Legal Issues

Abstract

The Australian government has developed a digital contact tracing app, COVIDsafe, accompanied by a temporary legal framework that is designed to support its deployment until a legislative framework is developed.

This preliminary analysis argues that the temporary legal framework does a creditable job in addressing privacy concerns. Despite this, there are a variety of legal risks that remain. These centre on the ability of the courts to issue orders to obtain and inspect the data produced by or through the app; police warrant powers; metadata retention and its availability to local law enforcement agencies; the vulnerability of data to US law enforcement agencies through the US CLOUD Act; inaccurate assurances about proximity restrictions and more general concerns that users’ consent to the use of their app data for contact tracing may not be valid.

These are issues that must be addressed by government when it develops its permanent legislative framework for COVIDSafe. A failure to do so will erode the community’s trust in COVIDSafe and thus undermine its efficacy as a means by which COVID-19 risks can be managed until a vaccine or an effective treatment become available.

Keywords: Data Protection, COVID-19