UK Data Privacy Legislation Cannot Be Bypassed to Limit Spread of COVID-19

The UK government has been challenged on its General Data Protection Regulation (GDPR) compliance over the "Test and Trace" program being used in England to limit the spread of COVID-19.

"Test and trace," sometimes referred to as "track and trace," is alarming to data privacy advocates and potentially to others who might not have considered the full implications of it to help ease restrictions. Governments all over the world are using a range of approaches to track contacts of individuals who subsequently test positive for the virus. However, a rush to roll out anything of this scale ultimately results in corners being cut. The fact that data privacy legislation has not been given sufficient consideration in the plan of the roll-out is not just a very big corner that has been cut, it's also extremely worrying.

The ability to trace contacts of individuals testing positive for COVID-19 is one of the crucial components to containing the virus as governments continue to ease lockdown restrictions around the world. The way in which test-and-trace can work is causing debate around the globe - either centrally (data uploaded to government server) or distributed (data remains on smartphones until someone reports positive for COVID-19) - as both present significant privacy and security issues.

The UK government has come under fire for launching test-and-trace without sufficient assessment of the impact on the data privacy of the individuals involved, referred to as a Data Protection Impact Assessment (DPIA) under the EU  (GDPR), which continues to be relevant to the UK as the country leaves the European Union.

While the UK government has stated that there has been no breach of the data (to date), it has acknowledged that a DPIA has not been undertaken. Good practice for collecting, storing, and using personally identifiable information (PII) requires safe and appropriate use to be assessed, which has not taken place on this occasion. The implications of this are yet to be seen, but failure to adequately assess the use of PII could result in non-compliance with the GDPR. According to the UK's Information Commissioner's Office: "Conducting a DPIA is a legal requirement for any type of processing, including certain specified types of processing that are likely to result in a high risk to the rights and freedoms of individuals."

There are plenty of examples of test-and-trace approaches around the world. Some countries are taking a legislative approach, such as South Korea with existing legislation following the outbreak of Middle East Respiratory Syndrome (MERS) back in 2015, allowing health officials to "aggressively trace the footsteps of individuals who test positive for an emerging infectious disease." In late March, Germany's Federal Cabinet took similar steps, amending its Infection Protection Act to include measures designed to slow the infection rate of COVID-19.

Other countries are taking a consensual approach, whereby individuals download a smartphone app and voluntarily participate in a test-and-trace program. The Government of Singapore has deployed TraceTogether, an app that "uses a community-driven approach to identify close contacts of users," and has also recently deployed wearable devices for those citizens without a smartphone to use the app. In Australia, the COVIDSafe app was launched back in April, with around 6 million downloads, but there have been significant concerns about performance. Both Singapore and Australia have had data privacy issues reignited as a result of test-and-trace approaches.

Data privacy has been hard fought in many countries. Countries enacting either mandatory or voluntary approaches to track-and-trace must be abundantly clear about how data will be used, potentially even legislating controls to deal with this, if they hope to effectively address significant data privacy concerns. In the UK, it remains to be seen what the implications are of the failure to undertake a DPIA for test-and-trace. What is clear however, is that we still need to take data privacy seriously and ensure that the right measures and practices are put in place at every level.

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