COVER STORIES Antitrust, Vol. 35, No. 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Contact Tracing: Strategies and Issues for Balancing Public Health Demands and Privacy Concerns BY ROBERT CattanacH AND NUR IBRAHIM UBLIC health EXperts agree that intrusive, some of these technologies are, and offer consid- until a vaccine is developed, the key tools for erations for evaluating the optimal balance . tackling the spread of COVID-19 require a robust testing model and effective contact trac- Technology Advantages and Limitations ing of new infections .1 This need led to the rapid Contact-tracing apps were developed using two widely development of new tracing technologies that launched available technologies: Bluetooth and GPS . Bluetooth Pbefore there was an opportunity to vet them fully . We now works by sending radio messages to announce the availabil- have a wave of smartphone apps that can track an individ- ity of a device to pair with applications running on another ual’s movement, notify whomever they have met, register Bluetooth enabled device 2. Bluetooth apps will keep track their symptoms, and monitor their health . of when the user’s phone sends out a Bluetooth announce- This information can be invaluable in combating the ment . If that individual tests positive, determining whose spread of the disease . If used by a large enough segment of phone connected with those messages will provide the base- the population, it could enable public health authorities to line for the contact tracing 3. Bluetooth based apps have locate and isolate potentially infected individuals . The ques- been likened to a virtual “handshake” because its markers tion posed, however, is at what cost to an individual’s right are designed to determine with whom you came into con- to privacy? Like much in the fight against COVID-19— tact . In contrast, GPS-based systems can track where the quarantining, wearing a mask, and shutdown orders—there potentially infected user has been, and at what time, and can is a sacrifice of individual civil liberties for the greater public then match up other users whose devices were at the same good . While that trade off may be essential to get us through location during the same time period 4. This location data this pandemic, these potentially extraordinary intrusions allows tracking of potential outbreaks or hotspots .5 into our private lives may set a concerning precedent for Both technologies are limited in their ability to prop- future compromises of individual liberties, whether by man- erly assess risk, such as whether there was actual contact datory government edict or “voluntary” adoption . rather than just proximity (radio waves can travel through The purpose of this article is to assess the early experi- walls, but the virus cannot) . GPS tends to be less precise, ences with various forms of digital contact tracing, identify and Bluetooth signals can strengthen with distance due to consequences to civil liberties, discuss the trade-offs between reflection off metal surfaces .6 These limitations may reduce emerging public and private initiatives—including potential the effectiveness of this technology, and may create a false antitrust concerns—and address how to protect the public sense of security if individuals never receive an alert about health without unacceptably compromising our civil liber- potential exposures, or desensitize people who receive too ties . We will explore the variety of approaches using smart- many .7 Perhaps most importantly for purposes of this arti- phone apps around the world, assess how effective, and cle, the Bluetooth markers likely do a better job protecting privacy than does the GPS technology, since Bluetooth, by itself, does not transmit location data to any central Robert Cattanach is a partner at Dorsey & Whitney LLP, and practices clearinghouse, and therefore does not involve location in the areas of cybersecurity and privacy. He was Editor-in-Chief of the surveillance .8 Ultimately, governments and individuals Sedona Conference’s recently published Incident Response Guide. Nur will have to decide whether the compromise in reliability Ibrahim is an associate at Dorsey & Whitney LLP, and practices in the Regulatory Affairs group. of the Bluetooth approach is worth the enhanced privacy protection . 18 · ANTITRUST How the data will be maintained presents additional and some resentment of the program . Data is sent to a concerns . As cell phone apps collect data it is either stored central server that constantly tracks an individual’s where- at remote centralized servers or on the users’ phones . Apps abouts . Since the application was developed in conjunction that use a centralized server will typically be able to access the with law enforcement, user location, city name, and iden- phone IDs of an infected person’s contacts to verify that the tifying codes are presumably shared with authorities, effec- correct people are receiving notifications of potential expo- tively providing constant surveillance of all users 16. China’s sure once the user reports symptoms or tests positive . In the approach to contact tracing presents the most aggressive decentralized app approach, however, health departments government control relative to individual liberties of any only learn about people who actually respond to an alert from contact tracing program . While the invasive nature of this their app, and have no way of determining if other individu- app has deterred widespread adoption elsewhere, some of its als were exposed who did not install and activate the app, or features are now emerging in apps that are being deployed how many notified people failed to respond to the notifica- in other countries . tion, and therefore might not be known to health authorities .9 For example, Singapore’s TraceTogether app technically is Use of a centralized server therefore raises concerns about the voluntary, and does not gather exact user location data, but potential to misuse the data, whereas the decentralized model it nevertheless represents one of the more comprehensive likely will be less effective for public health officials since it monitoring systems adopted 17. The app uses a cell phone’s relies on users’ voluntary installation and use . Bluetooth function to detect and log instances of close con- tact between persons, stores it on the phone, and then shares International Approaches: The Experience in Asia, that information with the Ministry of Health if a user tests Australia, and Israel positive .18 Public health authorities are able to use that data Contact tracing has been instrumental in slowing the spread to trace the disease’s route of infection and to notify individ- of COVID-19 in certain countries in East Asia . South Korea uals who have come into close contact with a COVID-19 was among the first to institute a mobile contact-tracing positive person for a period of 30 minutes or longer .19 app to monitor the movements of confirmed COVID-19 Singapore’s app became the model for Australia’s patients, building upon its government’s existing compre- COVIDSafe . The app is voluntary, although it appears to hensive surveillance efforts, which already gather mobile have been widely adopted with over 4 million downloads in GPS stamps, camera records, and credit card transactions 10. its first week, and allows the government to warn individuals The app, Corona 100m, collects government surveillance that they have been exposed to someone who has tested pos- data and shows the date of a diagnosis, nationality, age, gen- itive .20 The Australian model will not provide the exposed der and where the person visited .11 Users are alerted when an individual with information on who may have infected individual comes into close proximity to a location visited them .21 Despite its widespread acceptance, several limita- by an infected person .12 Contact tracing has been credited as tions were discovered soon after launching, specifically that an important component of the country’s success in quickly the app failed to properly log all encounters on “locked” flattening the curve of cases13—although it is worth noting phones where the app was not running in the background .22 that South Korea may be facing an unexpected spike in the Israel, similar to South Korea, deployed what is essen- spread .14 Many other countries, however, have been hesitant tially a mandatory tracking program . The Health Ministry to follow South Korea’s example over concerns that it is too supplies the name, ID Number, and cell phone number of intrusive . those infected with COVID-19 to Shin Bet, Israel’s Security China also embraced a very aggressive approach to con- Agency, which is then cross-referenced with the Tool, a clas- tact tracing . For individuals wishing to travel outside of their sified security database that collects cellular data from any- home, local governments across the country deployed an one using telecom in Israel . Those individuals coming into app that determines how much freedom of movement any close contact with the infected person receive a text message individual should have throughout society at large . Local informing them to quarantine and register with the Health governments created a database and health codes that were Ministry’s database .23 integrated into two widely popular apps for their technol- The mandatory nature of the tracking, as well as disclo- ogy, WeChat and Alipay .15 The Alipay Health Code app was sure of the Tool (which pre-dated the pandemic), has pro- launched in the city of Hangzhou as a project by the local duced highly vocal disagreement over the perceived invasion government and Ant Financial .