Towards a digital confinement with no expiry date

The institutionalization of surveillance practices to trace contacts and positives raises technical, ethical and legal issues that urgently need to be discussed

The digital measures proposed for exiting confinement have intensified the debate about the protection of privacy during the pandemic, a situation that entails certain restrictions of rights, but which under no circumstances can revoke them. Digital technology, as the medium for moving towards a “new normality”, until the vaccine arrives, could lead us to a covert digital confinement with no expiry date. This would be achieved through the institutionalization of techniques for the digital surveillance of people, raising technical, ethical and legal issues having enormous social impact, which urgently need to be discussed. The decisions that are taken in the context of public health must be proportional to the ends pursued, respectful of people’s rights, temporary and reversible.

The immunity passport, proposed as the measure that would enable us to recover our social life, was ruled out, due to the lack of scientific evidence and because it is incompatible with the protection of fundamental rights and freedoms in our context. It is disproportionate and stigmatizing, and, for practical purposes, it would encourage people to become infected in order to obtain the green light. Our social life does not depend on COVID-19 labels.

The use of apps tracing positives and contacts in order to control a possible new outbreak of COVID-19 obliges us to reflect on Europe’s dependence on American technologies, and our enthusiasm for falsely liberating digital solutions. We should not agree to the default inclusion of this kind of tracing service in smartphones’ operating systems, which imply a digital Big Brother on our doorstep, empowered by coronavirus. The Bluetooth technology chosen for tracing was not designed to manage a pandemic or to guarantee privacy – it could give rise to false positives and poses security problems.

It is necessary to have access to reliable data, which should be accessible, reusable and above all interoperable, and in conditions of security. Moreover, it is necessary to correlate personal health datasets stored in highly protected databases, due to the type of data processed, in order to draw valid conclusions. The installation of an app is no substitute for the traditional mechanisms for identifying positives and contacts, the strengthening of primary healthcare, or scientific evidence on which to base decisions. On no account, however, can it be conceived as a business model unconnected with public health and it is not a measure that will guarantee tourism this summer.

Impossible to guarantee immunity
Fernando Simón, in one of his regular appearances, was astonished, and rightly so, by a journalist’s question about the possibility of including information about people’s immunity in their curriculum vitae, immunity that at this moment cannot be guaranteed. News items in the business sections of some media outlets propose a kind of healthcare identity card with blockchain technology to be able to go back to work, taking it for granted that COVID-19 gives is a reason for any digital measures to be introduced, even if they are contrary to the most fundamental rights and freedoms, in the world of work too. Major consultancies and start-ups seem to be opting for this kind of certificate for workers, to which business managers, health centres and hospitals could gain access via an application, which the authorities would still be validating. It is a business model that might even be of interest to investment funds – now that they are ceasing to invest in old people’s homes – and which would revoke any and all freedom, bringing with it intensive surveillance with measures as immediate as they are profitable, even framed as part of occupational health and safety. 

Various tests used by businesses are not reliable, and personal data management is not something to be taken lightly, because it may give rise to unwanted uses of personal data, and to covert discrimination which may be based on untruthful information. PCR tests and temperature taking require clear criteria by the competent authorities, because situations that were exceptional to begin with have become the norm and they would not always be justified. In short, we must not make the mistake of understanding exiting confinement as a dichotomy between freedom and privacy.

Itziar de Lecuona, Deputy director of the Bioethics and Law Observatory and Lecturer in Bioethics at the School of Medicine, University of Barcelona.

• Published in El Periódico