Pandemic Privacy A Preliminary Analysis of Collection Technologies, Data Collection Laws, and Legislative Reform during COVID-19

Phrases like “[t]he pandemic which has just swept round the earth has been without precedent”¹ have been commonly read or heard throughout the COVID-19 pandemic. At the onset of the COVID-19 pandemic, there was a race to restrict mobility, undertake health surveillance to determine the source or cause of local outbreaks, and secure personal protective equipment for healthcare workers and domestic populations. Further and as in past health emergencies, there were efforts to collect and leverage available information to make sense of the spread of the disease, understand the nature of supply chains so as to determine what equipment was available to treat those affected by the disease or provide assistance to those afflicted with it, as well as to understand how the novel coronavirus was transmitted and its effects so as to develop vaccines to mitigate its worst repercussions.

In, “Pandemic Privacy: A preliminary analysis of collection technologies, data collection laws, and legislative reform during COVID-19,” we undertake a preliminary comparative analysis of how different information technologies were mobilized in response to COVID-19 to collect data, the extent to which Canadian health or privacy or emergencies laws impeded the response to COVID-19, and ultimately, the potential consequences of reforming data protection or privacy laws to enable more expansive data collection, use, or disclosure of personal information in future health emergencies. In analyzing how data has been collected in the United States, United Kingdom, and Canada, we found that while many of the data collection methods could be mapped onto a trajectory of past collection practices, the breadth and extent of data collection in tandem with how communications networks were repurposed constituted novel technological responses to a health crisis. Similarly, while the intersection of public and private interests in providing healthcare and government services is not new, the ability for private companies such as Google and Apple to forcefully shape some of the technology-enabled pandemic responses speaks to the significant ability of private companies to guide or direct public health measures that rely on contemporary smartphone technologies. While we found that the uses of technologies were linked to historical efforts to combat the spread of disease, the nature and extent of private surveillance to enable public action was arguably unprecedented.

Turning from the technologies involved to collect data, we shift to an analysis of how Canadian law enabled governmental collections, uses, and disclosures of personal information and how legislation that was in force before the outbreak of COVID-19 empowered governments to overcome any legal hurdles that might have prevented state agencies from using data to address COVID-19 in Canada. Despite possessing this lawful authority, however, governments of Canada were often accused of inadequately responding to the pandemic, and they, in turn, sometimes suggested or indicated that privacy legislation impaired their abilities to act. These concerns have precedent insofar as they were raised following the 2003 SARS pandemic, but they were then–as now–found to be meritless: privacy legislation has not been an impediment to data collection, use, or sharing, despite claims to the contrary. The challenges faced by governments across Canada were, in fact, precedented and linked to poor governmental policies and capabilities to collect, use, and share data just as in past health crises. 

Perhaps partially in response to perceptions that privacy rights afforded to Canadians impeded the pandemic response, the federal government of Canada introduced legislation in August 2020 (which ultimately did not get passed into law due to an election) that would both have reified existing exemptions to privacy protections while empowering private companies to collect, use, and disclose personal information for further ‘socially beneficial practices’ without first obtaining individuals’ consent. While it is hardly unprecedented for governments to draft and introduce privacy legislation that would expand how personal information might be used, the exclusion of human rights to balance commercial uses of personal information stands as a novel decision where such legislation is now regularly linked with explicit human rights protections. 

This report proceeds as follows. After a short introduction in Section one, we present the methodologies we used in Section two. Section three turns to how contemporary digital technologies were used to collect data in the United States, United Kingdom, and Canada. Our principal finding is that collection efforts were constrained by the ways in which private companies chose to enable data collection, particularly in the case of contact tracing and exposure notifications, and by how these companies choose to share data that was under their control and how data was repurposed for assisting in containing COVID-19. The breadth and extent of data collection was unprecedented when compared to past health crises.

In Section four, we focus on Canadian legal concerns regarding the extent to which privacy and civil liberties protections affected how the federal and provincial governments handled data in their responses to the COVID-19 pandemic. We find that privacy legislation did not establish any notable legal barriers for collecting, sharing, and using personal information given the permissibility of such activities in health emergencies, as these actions are laid out in provincial health and emergencies laws. More broadly, however, the legislative standard that allows for derogations from consent in emergency situations may be incompatible with individuals’ perceptions of their privacy rights and what they consider to be ‘appropriate’ infringements of these rights, especially when some individuals contest the gravity (or even existence) of the COVID-19 pandemic in the first place.

Section five turns to how next-generation privacy legislation, such as the Consumer Privacy Protection Act (CPPA), might raise the prospect of significant changes in how data could be collected, used, or disclosed in future health crises. The CPPA did not enter into law as a result of a Canadian federal election, which killed the bill on the Order Paper. Nonetheless, we find that a law such as the CPPA could facilitate unprecedented non-consensual handling of personal information.

Section six presents a discussion of the broader themes that cut across the report. These include how the pandemic further reveals the redistribution of power between states and private organizations, the need for novel digital epidemiological processes to have strong bioethics and equitable commitments for those involved in digital epidemiological experiments, and the need to assess the roles of consent in future health emergencies, especially when new legislative frameworks might permit more permissive and non-consensual data collection, use, and disclosure for health-related purposes. Section seven presents a short conclusion to our report.

Read the full report here.