Data Privacy Challenges for California COVID-19 Contact Tracing Technology

As opt-in contact-tracing applications across the US are being built for state-specific usage, attention inevitably turns to the privacy risks they present, and how authorities must balance public health with cybersecurity to build systems that are fully fit for purpose.

In the battle to control COVID-19, the fundamental role of contact-tracing applications is to alert people when they've come into contact with someone who has tested positive for the virus. They have been touted as a vital tool in identifying localized spikes in infections and helping authorities to quickly isolate anyone who may be at risk of spreading the virus further.

Considerable effort is being made to develop the technologies across the public and private sectors. In April, Apple and Google announced they were partnering on COVID-19 contact-tracing technology, and their work includes the development of APIs to ensure apps operate across iOS and Android devices, alongside Bluetooth capabilities, to broaden the effectiveness of the technology. They are not building apps, but they are offering underlying technology designed to help contact-tracing apps work better.

As subsequently reported in CNN Business in May, the companies then shared guidelines designed to protect consumer data privacy when using tracing apps based on their technology. They would not, for instance, collect any location data. The technology "will be used only by health authorities without being monetized; will require explicit user consent; and will be disabled once contact tracing is no longer needed," according to CNN Business.

But not everyone is going down that particular route, and in developing this technology, authorities are in new territory and are under pressure to build and launch apps as quickly as possible. There is considerable scrutiny attached to the subject around the world, and the UK government, for example, has faced significant criticism after it announced its intention to build a "world-class contact-tracing app," only to subsequently abandon its proprietary platform and shift to Google/Apple. As it stands now, the UK doesn't have a government-backed app, when only miles away, their neighbors in the Republic of Ireland do. Indeed, very few countries currently have a fully functioning app and supporting infrastructure available to all their citizens.

But many more apps are on the road to deployment, and they raise serious compliance and data privacy questions. How, for example, can app developers meet their compliance obligations? How can employers planning to introduce contact-tracing apps as part of a reopening strategy ensure data protection? And will the relaxation of travel restrictions affect the effectiveness of apps when different states and countries have different regulations?

The risks are considerable, with contact-tracing apps "easy prey for hackers," according to analysis by Politico. Any information collected by them, from location and health data to information about who individuals might have associated with, if compromised, could lead to stalking or discrimination of those diagnosed with COVID-19 at work or socially. 

As a result, they are subject to regulation by a variety of rules including the European Union's General Data Protection Regulation and the California Consumer Protection Act (CCPA). CCPA, for example, illustrates the key role of regulators both within the state and beyond, given the huge number of corporations operating in the region and their wider reach across the globe. 

Specifically, the grace period for compliance with the CCPA officially ended July 1, six months after the regulation went into effect Jan. 1. The CCPA is a state statute focused on consumer privacy and data protection for California residents, and the current rush by state governments to develop contact-tracing applications that will collect location information, health diagnoses, and more private information, means compliance is more critical than ever.

In the workplace context, the CCPA sets out some important practical and administrative rules that must be followed to ensure compliance. For instance, employers covered by CCPA operating in the state must notify their staff before they deploy a contact-tracing app. As legal experts explained in recent guidance published by Bloomberg Law, employers should "check their notice of collections to employees to see if they are broad enough to cover the functionality encompassed by contact tracing apps, and if not, amend the notice or issue a CCPA-specific notice that governs the use of contact tracing apps in the event any prior notices were not."

Relevant companies must ensure they're offering customers and staff information on what data is being collected, options around which personal details are being gathered, the right to say no and opt out of data collection, the right to request deletion of their information and equal pricing despite their privacy selections. It is a good time to update privacy policies and notices, check on the company's consumer-rights protocols and data-gathering processes/inventories, as well as ensure the right cybersecurity measures are in place. Compliance officers will also need to be more assertive and proactive about their check-ins to ensure all departments involved in contact tracing follow these guidelines. 

It's important to note that these requirements will also apply to the California government, when it releases its statewide application, and any state that Californians visit. It's safe to say that these conditions should be worked into all contact-tracing applications across the country, to safeguard them against potential CCPA violations in advance.

The bottom line is that apps designed to help protect people from COVID-19 shouldn't end up costing them dearly in other areas of life. It is incumbent on developers, governments, and regulators to work with the cybersecurity industry to apply rigorous standards to contact-tracing apps to make sure that the devastating societal impact of COVID-19 doesn't also extend into personal privacy.

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