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SURVEILLANCE  March 2020

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Subject:

GDPR constraints on smartphone tracking

From:

Roger Clarke <[log in to unmask]>

Reply-To:

Roger Clarke <[log in to unmask]>

Date:

Wed, 11 Mar 2020 08:26:48 +1100

Content-Type:

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[The responses to the virus risk provide a savage reminder of just how 
far the surveillance state has progressed, and how quickly service 
denial and movement denial can be implemented.]


> [Under the GDPR] ... mass tracking of people's movements and contacts 
using smartphone location data would represent a clear violation  ... 
[but] smartphone tracking would in all probability require people's 
consent to have a valid legal basis ...
...
> Employers are not allowed to take mandatory readings of the 
temperature of employees or visitors, nor can they require them to fill 
out compulsory medical questionnaires, according to French data 
protection office CNIL.
>
> In practical terms that means a receptionist may only take the 
temperature of a visitor under certain conditions, as this may require 
processing of health data that can only be done by a doctor
...
> Some systemic data collection may ... be required [of an employer], 
such as through workplace questionnaires or requiring staff to report 
their travel plans.
...
> [National parliaments may pass legislation overriding (some?) aspects 
of the GDPR, and Italy and Germany have done so]
...
...
> China, the source of the coronavirus epidemic, has introduced a 
mandatory ... system that uses smartphone software to determine whether 
people can move about or meet.
>
> Individuals rated red or yellow on the Alipay Health Code app are not 
allowed to travel or visit public places such as restaurants or shopping 
malls for 14 or 7 days respectively


EU privacy rules no obstacle to coronavirus fight; smartphone tracking a 
no-no
Mass tracking of movements and contacts using smartphone data a clear 
violation.
Douglas Busvine
itNews
Mar 11 2020
https://www.itnews.com.au/news/eu-privacy-rules-no-obstacle-to-coronavirus-fight-smartphone-tracking-a-no-no-539160

Europe's privacy rulebook does not create obstacles to taking action to 
curb the coronavirus epidemic but mass tracking of people's movements 
and contacts using smartphone location data would represent a clear 
violation.

Technophiles support the use of such data to reconstruct the movements 
of people exposed to the flu-like virus and identify others at risk of 
infection. Privacy advocates counter that this approach, used in China, 
subjects people to the kind of digital surveillance that has no place in 
a Western democracy.

The General Data Protection Regulation (GDPR), which took effect in the 
European Union in mid-2018, states that people's data is their own and 
requires anyone seeking to process it to obtain their consent.

What do employers have to do?

Companies should take action to minimise both the risk of infection and 
violations of privacy. They can obtain information on whether an 
employee has travelled to a region with confirmed coronavirus cases, 
according to law firm CMS 
https://cms.law/en/nld/publication/coronavirus-employer-measures-and-policies.

Some systemic data collection may also be required, such as through 
workplace questionnaires or requiring staff to report their travel plans.

This is covered under Articles 6 and 9 of the GDPR, which cover 
workplace health and safety, and using preventive or occupational 
medicine to address serious cross-border health threats.

What can't the[y] do?

Employers are not allowed to take mandatory readings of the temperature 
of employees or visitors, nor can they require them to fill out 
compulsory medical questionnaires, according to French data protection 
office CNIL.

In practical terms that means a receptionist may only take the 
temperature of a visitor under certain conditions, as this may require 
processing of health data that can only be done by a doctor, said Holger 
Lutz, partner at law firm Baker & McKenzie.

Can national governments override the GDPR?

Italy, the European country hardest hit by coronavirus, has passed 
emergency legislation requiring anyone who has recently stayed in an 
at-risk area to notify health authorities either directly or through 
their doctor.

Germany, meanwhile, recently inserted wording into its GDPR enabling 
legislation that specifically allows for the processing of personal data 
in the event of an epidemic, or natural and man-made catastrophes, said 
Lutz.

Could smartphone tracking help?

The head of the Robert Koch Institute, Germany's main public health 
body, caused a stir last week by suggesting that smartphone location 
data could be used to track people as a tool for curbing the spread of 
the coronavirus.

The technology exists - Google Maps for example uses smartphone GPS 
location data to estimate traffic congestion and calculate journey times.

A Hamburg geotracking startup called Ubilabs is working with the 
Hannover School of Medicine on a data analysis platform that could track 
people who have tested positive for the coronavirus and their contacts, 
Der Tagesspiegel reported on Tuesday.

How could tracking comply with GDPR?

Such smartphone tracking would in all probability require people's 
consent to have a valid legal basis, Federal Data Protection Officer 
Ulrich Kelber told Reuters.

Any tracking-based system would need to undergo detailed analysis to 
ensure an acceptable level of data protection, Kelber said. It should 
also be proportionate, both in terms of whether the accuracy of the 
location data gathered serves the intended purpose and whether a less 
intrusive method is available.

What are other countries doing?

China, the source of the coronavirus epidemic, has introduced a 
mandatory traffic-light system that uses smartphone software to 
determine whether people can move about or meet.

Individuals rated red or yellow on the Alipay Health Code app are not 
allowed to travel or visit public places such as restaurants or shopping 
malls for 14 or 7 days respectively.

In Taiwan, visitors are required 
https://jamanetwork.com/journals/jama/fullarticle/2762689 on arrival to 
download a questionnaire using a QR code and report the airport they 
came from, their 14-day travel history and health symptoms.

Those assessed to have low risk receive a text message telling them that 
they are free to travel. Those deemed to pose a risk are required to 
self-isolate for 14 days, with their compliance monitored using location 
data from their smartphones.


-- 
Roger Clarke                            mailto:[log in to unmask]
T: +61 2 6288 6916   http://www.xamax.com.au  http://www.rogerclarke.com

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
Visiting Professor in the Faculty of Law            University of N.S.W.
Visiting Professor in Computer Science    Australian National University

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