Law and Tech during COVID-19: Is the Government’s Proposed New App our Saving Grace or a Potential Privacy Issue?

A New App to Track a Virus?

The Australian Federal Government recently announced its plans to launch a phone app which would enable it to track the spread of COVID-19 by collecting user metadata. Likely, the app would be similar to that currently be used by the government in Singapore. Singapore’s app, TraceTogether, records ‘digital handshakes’ between devices, tracking individuals who have had the virus and those they may have come into contact with it. This ideally allows the Health Authorities to get ahead of further spread of the virus.

However, the app in Singapore is still in some stages of infancy, and has only been adopted by approximately 20% of the population. Prime Minister Scott Morrison has suggested that in order for the app to be successful in Australia, a minimum of 40% of the population will need to voluntarily download the app. A lofty goal, but how realistic is it?

Can the public trust the Government with its Privacy?

Most unfortunately, in past circumstances where the Australian Government has managed mass metadata under the guise of ‘protective purposes’, it has abused the public’s trust.

For instance in 2015 the Federal Government introduced the metadata retention scheme which required telecommunications companies to collect and store their customers’ metadata for two years. In passing the legislation, the Coalition and Labor party argued the laws were necessary to assist authorities in counter-terrorism and serious crime investigations, however, opponents warned the scheme would entrench “passive, mass surveillance”. The law passed despite the fact that at the time a similar scheme in Europe was ruled invalid for being incompatible with fundamental rights.

Sometime after the legislation was enacted, in 2018, it came to light that at least 100 state based agencies had been abusing the scheme in order to access metadata for purposes other than for serious crime fighting and counter-terrorism uses. For example, in some instances city councils requested that telecommunications providers provide them with certain individuals’ metadata in a bid to chase down ‘illegal dumpers’.

What is Metadata?

Metadata can be described as data which describes other data (and at the same time does not specifically identify the primary data). It can generally be broken down into three different categories:

  • descriptive data;
  • structural data; and
  • administrative data.

Another explanation is that metadata is information that is used to describe data that is contained in something like a web page, document, or file. Whoever has access to metadata information (such as a government monitoring an app) can potentially monitor an individual’s activity.

Can the Australian public trust the Government to only monitor and use the metadata collected through the proposed app solely for the purpose of tracing COVID-19?

If the Federal Government wishes to take steps towards engendering public trust in order to reach its 40% app download goal it should consider the following.

The decision of the Full Court of the Federal Court in Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC 4 cast serious doubt on whether metadata is considered to be ‘personal information’ and is therefore afforded protection under the Privacy Act. If the Federal Government wishes to engender public trust in this area it needs to update the Privacy Act to expressly include metadata as ‘personal information’.

The Government should also ensure that its in-app Privacy Policies are extremely protective of individual’s data and metadata and restrictive on how the government may use and manage that information. The privacy policies of the current Coronavirus App launched by the Government in March (which is not a contact tracing app) is too overly broad in the purposes for which the government may use an individual’s data. If the March app is a reflection of the future app it will poorly safeguard any Privacy concerns.

Nowadays, the Australian public and the citizens of the world are experiencing government encroachments upon their civil liberties in ways unseen in decades. Although the necessity for such government intervention in these times is understandable, we should not undervalue our privacy rights and freedoms. Downloaders of the future Australian App may be consenting to the further, and less reversible entrenchment, of mass government surveillance rather than actually achieving any kind of substantial difference.