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

15 Pages Posted: 26 May 2020

See all articles by Lisa M. Austin

Lisa M. Austin

University of Toronto - Faculty of Law

Vincent Chiao

University of Toronto - Faculty of Law

Beth Coleman

University of Toronto - Faculty of Information

David Lie

University of Toronto

Martha Shaffer

University of Toronto - Faculty of Law

Andrea Slane

University of Ontario Institute of Technology (UOIT), Legal Studies

François Tanguay-Renaud

Osgoode Hall Law School, York University

Date Written: May 22, 2020

Abstract


Executive Summary

Contact tracing is essential to controlling the spread of infectious disease and plays a central role in plans to safely loosen COVID-19 physical distancing measures and begin to reopen the economy. Contact tracing apps, used in conjunction with established human contact tracing methods, could serve as part of Canada’s “test, trace, and isolate” strategy. In this brief, we consider the potential benefits of using contract tracing apps to identify people who have been exposed to COVID-19, as well as the limitations of using this technology. We also consider the privacy implications of different app design choices. Finally, we consider how the privacy impacts of contact tracing apps could be evaluated under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests. We argue that so long as apps are carefully constructed and the information they reveal is appropriately safeguarded, tracing apps may have a role to play in the response of a free and democratic society to the Covid 19 pandemic.

1. 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. 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.

2. Privacy Choices: Currently, the most privacy-protective design for contact tracing apps makes use of proximity data (via Bluetooth) through a decentralized design. 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.

In addition to the constitutional questions raised by these privacy choices, there are two important considerations. First, social trust is important. If individuals do not feel comfortable with using a particular contact tracing app there will not be the large-scale uptake needed to make these an effective addition to human contact tracing. Second, due to various technical challenges, it is difficult to make effective contact tracing apps utilizing proximity data unless one uses the method supported by Apple and Google. However, Google and Apple prohibit app developers both from utilizing centralized methods and from utilizing location data.

3. Constitutional Balancing: Our privacy commissioners have discussed the need to assess these privacy choices according to the principles of necessity and proportionality. The Canadian Charter provides an important framework for thinking about these principles as it provides us with a framework for how to balance rights and interests in a free and democratic society. The 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. The currently prevailing restrictions on movement and work are themselves limitations of basic rights and liberties. 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 (e.g., security of the person) which must be balanced against the potential infringement of privacy rights.

Keywords: COVID, 19, Charter, Constitution, Canada, privacy, rights, liberty, pandemic, public health, apps, tracking, tracing, isolation

Suggested Citation

Austin, Lisa M. and Chiao, Vincent and Coleman, Beth and Lie, David and Shaffer, Martha and Slane, Andrea and Tanguay-Renaud, François, Test, Trace, and Isolate: COVID-19 and the Canadian Constitution (May 22, 2020). Available at SSRN: https://ssrn.com/abstract=3608823 or http://dx.doi.org/10.2139/ssrn.3608823

Lisa M. Austin (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Vincent Chiao

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Beth Coleman

University of Toronto - Faculty of Information ( email )

140 St George Street
Toronto, Ontario M5S 3G6
Canada

David Lie

University of Toronto ( email )

Department of Electrical and Computer Engineering
10 King's College Road
Toronto, Ontario M5S3G4
Canada

Martha Shaffer

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Andrea Slane

University of Ontario Institute of Technology (UOIT), Legal Studies ( email )

2000 Simcoe Street North
Oshawa, Ontario L1H 7K4
Canada
905-721-8668 x2844 (Phone)

HOME PAGE: http://www.socialscienceandhumanities.uoit.ca/

François Tanguay-Renaud

Osgoode Hall Law School, York University ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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