The last week has been really busy day for our managing director and data protection expert, Ibrahim Hasan, with a frenzy of media interviews. Well not quite a “frenzy” but three is a start!
Ibrahim was first interviewed on BBC Radio 5 live’s Drive programme by Anna Foster. He spoke about the rules requiring restaurants and pubs to keep contact details of customers and the GDPR/DPA consequences if things go wrong. He emphasised the important of business owners complying with data protection laws and educating their staff on their responsibilities.
Later in the day, Ibrahim had his first live television interview which was broadcast on BBC News 24 and BBC News Worldwide. He was asked about the new NHS Contact Tracing App and the privacy implications. He also talked about the consequences of misusing personal data. We are waiting to receive the recording of this interview. In the meantime you can read the feedback on our social media channels (LinkedIn and Twitter). You can also read more about the previous version of the NHS contact Tracing App in our blog.
Finally, on 18th September, Ibrahim appeared on BBC Radio Berkshire to talk about the same issue. This followed a lady who was contacted by a bus driver for a date using her T and T details!
Everyone will agree that the government needs to do everything it can to prevent the further spread of the Coronavirus and to “save lives” (except if your name is Dominic Cummings -Ed). However, there is much less consensus about the what it should do, and this can be seen in the current debate about the proposal to roll out a contact tracing system and the NHS COVID App. This is the third in a series of blog posts where we examine the COVID App from different perspectives.
On May 7 2020, the Parliamentary Joint Committee on Human Rights (PJCHR) published its report on the proposed contact tracing system and made a series of important recommendations to address its concerns about the compatibility of the scheme with data protection laws and the Human Rights Act 1998. After waiting for two weeks, the Secretary of State for Health, Matt Hancock, replied to the Committee rejecting its proposals as “unnecessary!” Let us examine those proposals in detail.
The Human Rights Considerations
Section 6 of the Human Rights Act 1998 makes it unlawful for any public authority (that includes the UK government and the NHSX) to act in a way that is incompatible with a Convention right. Article 8(1)of the ECHR states that “Everyone has the right to respect for his private and family life, his home and his correspondence.” This is not an absolute right. Article 8(2) provides that an interference with the right to privacy may be justified if it:
“…is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
However, the government also has an obligation to protect the “right to life” enshrined in Article 2 of the ECHR. This means that if the NHS COVID App really can prevent the spread of the virus and save lives, then this is going to a major consideration in deciding whether the interference with Article 8 is necessary and proportionate.
On 7 May the Parliamentary Joint Committee on Human Rights (PJCHR) published a Report on the NHS COVID App and this provides a very detailed assessment of some of the human rights implications of the “centralised” approach that the NHS has proposed. The overall conclusion of the report is that if the app is effective it could help pave the way out of current lockdown restrictions and help to prevent the spread of Coronavirus. However, it also concludes that the app, in its current form, raises “significant concerns regarding surveillance and the impact on other human rights which must be addressed first.”
How will the COVID Appinterfere with the right to privacy?
At first glance it would appear that the COVID App does not involve the transfer of any personal data. As explained in the first blog in this series, app user will be given a unique ID which will be made up of a set of random numbers and the first half of a person’s post code. The NHS web site suggests that this ‘anonymises’ the information. However, as the Parliamentary Report notes, there are parts of England where less than 10,000 people live in a post code area and as little as 3 or 4 “bits” of other information could be enough to identify individuals. The report also notes that relying upon people self-reporting alone (without requiring conformation that a person has tested positive for COVID 19) may carry the risks of false alerts thereby impacting on other people’s rights if they have to self-isolate unnecessarily.
An interference with a person’s right to privacy under ECHR Article 8 may be justified under Article 8(2) if it is “in accordance with the law” and is “necessary” for the protection of “health” (see above).
To be in accordance with the law, the app must meet the requirements of the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 “http://www. legislation.gov.uk/ukpga/2018/12/contents” (DPA). However, as noted below, the PJCHR believes that the “current data protection framework is contained in a number of different documents and it is nearly impossible for the public to understand what it means for their data which may be collected by the digital contact tracing system”. The Committee’s recommendations in relation to this are considered below.
The remaining human rights consideration is whether the interference with peoples’ private lives is “necessary”. The answer to this depends on whether the use of the app will contribute to reducing the spread of COVID 19 and whether it will save lives.
This in turn depends on whether the app works and on the uptake of the app.
Although it was reported that uptake of the app in the Isle of Wight has exceeded 50% of the population, this falls short of the 60% that the government had previously suggested was necessary for the app to be effective. It is also debatable whether it necessarily follows that the uptake will be the same on the mainland. If the App is not capable of achieving its objective of preventing the spread of the virus, then the interference with peoples’ privacy rights will not be proportionate and will not fulfil the requirement of necessity in Article 8(2).
Although many people will probably download the app without thinking about privacy issues (how often do any of us download apps without checking Privacy Notices?), many others may have some real privacy concerns, particularly after the recent media debates. This has not been helped by reports that Serco (the company contracted to train call centre staff for the contact tracing scheme) has accidentally shared the email addresses of 300 contact tracers. Or by the fact that in other parts of the world there is growing concern about the privacy issues related to the use of contact tracing apps. Uptake of the app may be adversely affected if people lack confidence in the way in which data is being processed and why, and in the light of above they may have concerns about data security.
Consequently, the PJCHR’s report includes a series of recommendations aimed at ensuring that “robust privacy protections” are put in place as these are key to ensuring the effectiveness of the app .
Central to their recommendations was a proposal that the government introduce legislation to provide legal certainty about how personal data will be processed by the COVID App. Although individuals’ data protection rights are protected by the GDPR and DPA 2018 the Committee believes that it is “nearly impossible” for the public to understand what will happen to their data and also that it is necessary to turn government assurances about privacy into statutory obligations. The PJCHR sent a copy of their draft Bill to Secretary of State, Matt Hancock. However, on 21 May Matt Hancock rejected that proposal on the basis that the existing law provides “the necessary powers, duties and protections” and that participation in contact tracing and use of the app is voluntary.
In contrast the Australian government has passed additional new privacy protection legislation specifically aimed at the collection, use and disclosure of its COVID safe app data.
The Committee’s other recommendations are:
The appointment of a Digital Contact Tracing Human Rights Commissioner to oversee the use, effectiveness and privacy protections of the app and any data associated with digital contact tracing. It calls for the Commissioner to have the same powers as the Information Commissioner. It would appear that Matt Hancock has also rejected this proposal on the basis that there is already sufficient governance in place.
Particular safeguards for children under 18 to monitor children’s use, ensure against misuse and allow for interviews with parents where appropriate. It is noticeable that the Committee has set the age at 18.
The app’s contribution to reducing the severity of the lockdown and to helping to prevent the spread of COVID 19 must be demonstrated and improved at regular intervals for the collection of the data to be reasonable. Therefore the Secretary of State for Health must review the operation of the app on a three weekly basis and must report to Parliament every three weeks.
Transparency. In the second of this series of blog posts, we noted some of the issues relating to the publication of the Data Protection Impact Assessment. The PJCHR calls for this to be made public as it is updated.
Time limited. The data associated with the contact tracing app must be permanently deleted when it is no longer required and may not be kept beyond the duration of the health emergency. However these terms may be open to some interpretation.
Matt Hancock has written that he will respond to these other issues “in due course”.
It is unclear what this means, but it does not suggest any immediate response.
The Draft Bill
The PJCHR’s draft bill (rejected by Matt Hancock) proposed a number of important provisions, some of which are set out below.
The Bill specifically limited the purpose of the COVID App to:
Protecting the health of individuals who are or may become infected with Coronavirus; and
Preventing or controlling the spread of Coronavirus (a) preventing the spread of Coronavirus.
Additionally it contained provisions that prohibited the use of centrally held data without specific statutory authorisation; limited the amount of time that data could be held on a smart phone to 28 days followed by automatic deletion unless a person has notified that they have COVID 19 or suspected COVID 19. It also prohibited “data reconstruction” in relation to any centrally held data. The fact that the Bill includes this, seems to suggest an implicit recognition that the Unique IDs are not truly anonymous.
The ‘status’ of the NHS COVID App keeps changing and it still remains to be seen when (and if) it will be rolled out. But the Northern Ireland Assembly has already announced it will be working with the Irish government to produce a coordinated response based on a decentralised model. It is reported to be doing this because of the difficulties and uncertainties surrounding the app, and the human rights issues arising from a centralised app.
Yesterday the Prime Minister said England will have a “world-beating” Covid 19 contact tracing system from June. Part of this system is the introduction of the NHS contact tracing app (“the Covid App”) which is currently being trialled on the Isle of Wight.
The app was initially meant to be launched across England in mid-May. Yesterday No.10 suggested this will be done “at a later date.” Why the delay? Well if you look at the recently published Data Protection Impact Assessment (DPIA) for the trial it’s obvious that much more work needs to be done. Here is our analysis of some of the issues raised. (If you are new to this subject we suggest you read the first blog in our series which discussed how such apps work and the different models which can be used.)
Background to the DPIA
The start of the App project has not been auspicious; nor does it instil confidence in the people running it. How can the public, let alone privacy professionals, trust the government when they say that the app will respect their privacy?
The trial of the app started on the Isle of Wight before the Information Commissioner’s Office (ICO) had been given sight of the DPIA. Although they have now seen a copy, the ICO is yet to give a formal opinion. Should the trial have gone ahead in this situation?
As demands grew to see the DPIA, NHSX published it as a .pdf document! However embedded documents including the all-important risk register could not be accessed.
So much for transparency! A few days later the word version of the DPIA was published revealing all the documents but there were typos and some names were not redacted. More importantly, those scrutinising it raised concerns that “high risks” in the original documentation had been listed as only “medium risks” in the risk register. NHSX quickly removed the word document and only the .pdf version is now available (here). For the trial to go ahead before all of the promised and finalised accurate documentation had been released again does not engender faith in the app’s ability to protect users’ privacy.
An Ethics Advisory Board has been set up to oversee the Covid App project. In a letter to the Secretary of Health and Social Care, the Board spelt out the 6 principles it expected to be followed; value, impact, security and privacy, accountability, transparency and control.
Some members of the Board have since raised their concerns to the press over how the Board has been responded to. They were also unhappy not to have seen the final DPIA before being asked to comment.
Parliament’s Joint Committee on Human Rights has also been scrutinising the Covid App. It has said that it is not reassured that the app protects privacy and believes that it could be unlawful if the large amount of data gathered proved ineffectual. The Committee has even taken the unusual step of drafting a bill which would require all of the collected data to be deleted after the pandemic is over. (We will look at what data the NHS wants to keep for research purposes and why in our fourth and final blog in this series.)
These serious concerns being raised being by experts and parliamentarians will have a big impact on the public uptake of the app.
Privacy by Design
In line with Article 25 of the GDPR, the app’s DPIA states that it was designed and will continue to evolve with the Privacy by Design principles embedded. They include collecting the minimal amount of data necessary; data not leaving the device without the permission of the user; users’ identities obscured to protect their identity; no third-party trackers; proximity data deleted on users’ phones when no longer required; user can delete the app and its data at any time; personal data will not be kept for longer than is necessary in the central database; data in the central database will not be available to those developing in the app apart from in exceptional circumstances; and provision of any data from the central database will be subject to a data protection impact assessment and establishment of legal basis for the disclosure.
The key part of any DPIA are the risks identified and what mitigation can be put in place to reduce that risk if possible. The documented risks in the Covid App include:
Transferring of data outside of the EEA
Misuse of information by those with access
Adequate data processing agreements with relevant data processors
Lack of technical or organisational measures implemented to ensure appropriate security of the personal data
Personal data not being encrypted both/either in transit or at rest
Lack of testing which would assess and improve the effectiveness of such technical and organisational measures
Inadequate or misleading transparency information
Misuse of reference code issued by app for test requests and results management
Malicious access to sonar backend by cyber-attack. Extraction and re-identification of sonar backend data by combination with other data
Identification of infected individual due to minimal contact – e.g. isolated person with carer who is only contact
Malicious or hypochondriac incorrect self-diagnosis on app
Absence of controls over access to app by children
Lower than expected public trust at launch
Uncertainty about whether users will be able to exercise SRRs in relation to data held in the sonar backend
Uncertainty over retention of individual data items
It is surprising that the Covid App DPIA only identifies 15 risks in such a major project involving sharing Special Category Data. To assess all those risks as low to medium also casts doubts on the robustness of the risk assessments. Recently we heard that wide-ranging security flaws have been flagged by security researchers involved in the Isle of Wight pilot.
There also seems to be a lack of clarity about the data being processed by the app.
In response to the concerns raised, NHXS itself tweeted that the Covid App “does not track location or store any personal information.”
This was quickly objected to by many from the data protection community who disagreed with both assertions and argued the app used pseudonymised data and trackers.
The ICO itself states on its website:,
“Recital 26 (of the GDPR) makes it clear that pseudonymised personal data remains personal data and within the scope of the GDPR”.
The DPIA itself, however, does state that pseudonymised will be used and is personal data. The mixed messages coming from NHSX will only continue to cause confusion and once again erode trust.
What is even more worrying is that there are some risks that have not been identified in the original DPIA:
There is a risk that there could be function creep and identification over time as more personal data is added or different research projects add in other identifiable data sets, along with the risk of interpreting smartphone users’ movements and interactions.
Users’ rights for their data to be erased under Article 17 of the GDPR have been completely removed once the data is used for research purposes. We’ll explore this more in a later blog around research.
No decision has yet been made on retention periods for research. The data could be kept for too long and breach the GDPR Principle 5.
The collection of personal data could be unlawful as it may breach the Human Rights Act 1998. If the app does not prove effective, it is arguable that it is not necessary and proportionate for the purpose it was created. More on this in the third blog in this series.
It also is unclear as to how the NHS risk scoring algorithm works as details have not been published. The Privacy Notice makes no mention of automated processing and is therefore not compliant with Article 13 (2)(f) of the GDPR.
At this moment in time, there are still far too many questions and unaddressed concerns relating to the Covid App to reassure the public that they can download it in good faith, and know exactly what will happen to their data.
Feedback from the privacy community should result in a revised DPIA and further scrutiny. Only after all the questions and concerns have been addressed should the app be launched. Yesterday outsourcing firm Serco apologised after accidentally sharing the email addresses of almost 300 contact tracers. The company is training staff to trace cases of Covid-19 for the UK government!
This is the first in a series of four blog posts, in which Susan Wolf and Lynn Wyeth, take a closer look at the government’s proposed NHS COVID 19 contact tracing app (COVID App) from different perspectives.
On 12 April 2020, the UK Government announced that NHSX, a unit of the NHS responsible for digital innovation, was developing a COVID 19 contact tracing app to help in its attempts to combat the coronavirus pandemic. A trial began on the Isle of Wight on 5 May. This could result in the app being improved before it is used more widely across the UK.
In this first blog we explain what the proposed app will look like, how it will work and how it compares with other contact tracing apps. This will be followed by an analysis of the data protection issues raised by the introduction of the app in the UK. The third blog will examine some of the wider privacy and Human Right’s concerns and the fourth blog will look at more detailed issues relating to anonymisation, the use of the data for research purposes and the impact on data subjects’ rights.
What is Contact Tracing?
Contact tracing has been used for many years throughout the world to enable public health organisations to try and identify who people with contagious diseases have been in contact with so that they can be warned that they may be at risk. It has traditionally involved a manual exercise of a health professional working with a diagnosed patient to try and establish who they may have been in close contact with during the infectious period of the disease. However, with the number of smart phone users worldwide surpassing 3.8 billion (more than half the world’s population) mobile phones can provide a much faster and more accurate tracing system.
What is a Contact Tracing App?
A contact tracing app is a smart phone application that automatically warns people if they have been in close contact with someone who later reports that they have COVID 19 symptoms or who has tested positive. App users are allocated a unique identifier that is transmitted by bluetooth signal on their phone. When they come into close contact with other app users their unique ID’s are exchanged, via bluetooth, between phones. The Telegraph Newspaper neatly describes it as a form of “digital handshake.”
According to Wikipedia, 15 countries have developed a contact tracing app and many others are in the process.
The Different App Models
What happens to the information that is stored on a contact tracing app user’s phone depends upon the type of app that is being used. In recent weeks it has become clear that contact tracing these apps fall into two broad “types” and, according to the Guardian Newspaper on 7th May 2020, the world is split between the so-called decentralised and centralised models. What basically differentiates the two models is the way in which the information that is stored on users’ phones is processed and used to notify others.
The distinguishing feature of the “decentralised model” is that unique ID’s are matched on a user’s smart phone and are not transferred to any central server held by a government or private sector organisation. If a user tests positive for COVID 19 they would “inform” the app, which will would then identify and then notify other app users who have been in close contact with them. The “match” takes place entirely on the user’s smart phone.
When a contact receives a notification this too is entirely private to them. In other words, public health or government organisations are not notified that a user has been in proximity to an infected person. The general perception appears to be that the decentralised model is more “privacy friendly”. According to the Parliamentary Joint Committee on Human Rights , the Information Commissioner’s Office, privacy experts and organisations, as well as the European Parliament and the European Data Protection Board (EDPB) have indicated a preference for a decentralised approach.
Most decentralised models use the Apple and Google programming interface (“APIs”) which supports the contract tracing. This is an important point because it allows the interoperability of bluetooth communication between Apple iPhones and Android phones. The former normally switch off the bluetooth function when the phone is locked; however this API allows bluetooth to function even when an iPhone is locked, thus enabling the contact tracing to operate at all times.
In contrast the “centralised model” involves the transfer of information from the users’ smartphones to a remote server operated by a government organisation or by the private sector on their behalf. The central server then determines who is at risk and who should be notified. The perception is that the centralised model is a less privacy friendly option. However it does allow for useful data to be transferred to a public health organisation and used for epidemiological purposes. A recent BBC article provides a useful graphic illustration of the differences between the two models.
The NHS COVID App
The UK NHS COVID App falls into the general category of “centralised” apps. It is still being piloted in the Isle of Wight and is currently the subject of considerable media and political debate.
Once it is finalised the app will be available for smart phone users to download from the Apple or Google stores. Take up will be voluntary. The information below is based on our current understanding of how the app will work, although this may change in the coming weeks.
Once the app is downloaded users need to provide the first half of their postcode but no other personal information. This will be used along with a random string of numbers to provide each user with their own unique ID. We are told that the first part of the postcode is necessary to enable the NHS to see where there are any COVID 19 hotspots.
When NHS COVID App users come into contact with other app users their phones will exchange the unique ID’s. The app can use bluetooth to measure the distance between people who have the app installed on their phones. The NHS website refers to this as “anonymous proximity information.” However it is debatable whether the unique ID is truly anonymised given the very extremely high threshold for complete anonymity.
Once this information is stored on the phone nothing will happen for 28 days.
The information will be deleted unless the app user intervenes by notifying the NHS that they have COVID 19 symptoms or have tested positive. Alternatively app users can delete the app, and this will delete all of the data, although any data already transmitted to the NHS via notification will not be deleted by the app user.
It has been reported that Apple and Google have refused to make their API available to the NHS to support the use of the NHS app. It remains unclear what the current situation is regarding this.
As it currently stands (and to the best of our knowledge) the app has one central question “How are you feeling today?” If the app user taps that they are feeling unwell they are then they are asked whether they have a high temperature and a persistent cough. If a person indicates that they have both these symptoms, then they are prompted to select a date when the symptoms started.
The ‘centralised’ feature of this app is that if somebody is reporting that they are ill with COVID 19 or have symptoms, then the NHS will receive the unique ID of the person reporting that they are ill along with the unique ID’s of all the other people who they have come into proximity with. It is this transfer of data from the app user’s phone to a remote server that makes this system ‘centralised’.
However, it remains unclear whether notification is mandatory or voluntary. According to the NHS website, users can “allow the NHS COVID 19 app to inform the NHS”.
This wording suggests that this notification to the NHS is voluntary. If this is the case, then this raises some concerns about the value of the system since it would appear to depend upon voluntary notification. There are concerns that if people notify on the basis of symptoms alone it could result in over notification. In Germany the contact tracing app will only trigger alerts if users have tested positive for COVID 19.
On receipt of the information the NHS will use a “risk algorithm” to determine whether the people the user has come into contact with need to be notified. If it identifies that other users need to be notified, they will receive an alert.
The success of the app relies upon various factors including:
The sufficient take up by members of the public. At the moment it looks like the app will be voluntary. It has been reported that government aides think that the app will need to be downloaded by 60% of the population in order to be effective.
Transport Secretary Grant Shapps said at the daily briefing on Thursday that more than 72,300 out of 140,000 residents in the Isle of Wight have downloaded the app.
The technology working (see above regarding the Apple and Google programming interface).
The willingness of members of the public to notify the app that they have tested positive or have COVID 19 symptoms. The former depends upon the availability of testing facilities and the fast turnaround of test results.In a letter to Health Secretary Matt Hancock, the chairman of the Royal College of GPs said long wait times were “undermining confidence” in the results.
The extent to which members of the public will be willing to install and use the app will no doubt depend on whether members of the public believe that the use of the app will help reduce the spread of the virus and save lives. But for others there will inevitably be concerns about the privacy implications of using the app. Some important questions need to be answered:
What will happened to the data after it has been used?
How long will it be held?
Is there a danger of the data being used for other purposes?
What ifs use of the app is made a condition for an “immunity passport”?
The answers to these questions will have a big impact on the extent to which the app complies with GDPR and Human Rights law. We will be looking at these issues in more detail these questions in forthcoming blogs. Stay tuned!