The COVID-19 Pandemic & The Emergence Of Digital Contact Tracing
On March 12, 2020, the WHO announced that COVID-19 was officially a pandemic.[1] COVID-19 is largely contracted from person-to-person contact through “small droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs, sneezes, or speaks.”[2] A person is at high risk of becoming infected with COVID-19 if he or she is in close contact with someone who is infected with the virus.[3] Both individuals can then transmit the disease to others.[4] Monitoring individuals who come in close contact with another person who is infected with COVID-19 helps the exposed person receive timely care and treatment and reduce the potential of further transmission.[5] Such a monitoring process is called contact tracing.[6] Evidence has shown that countries that acted quickly, testing and monitoring the movements of their citizens had better outcomes, such as morbidity and mortality rates, than countries like the United States that did not engage in early detection methods.[7] As it turns out, digital contact tracing applications have emerged as one tool for managing the pandemic, however this raises privacy concerns.
I. What is Contact Tracing?
Contact tracing is not a new concept.[8] In fact, it is a well-established, core concept of the response to any contagious disease outbreak.[9] Contact tracing is defined as a “widely adopted surveillance system that is used to identify, evaluate, and handle people who have been exposed to novel infectious diseases.”[10] Moreover, contact tracing is an essential public health methodology used to fight the spread of infectious diseases, including the COVID-19 virus.[11] Consequently, public health organizations have had to depend on traditional epidemic control measures, such as contact tracing, to slow the spread of the pandemic.[12] The Centers for Disease Control and Prevention (CDC) has described case investigation and contact tracing as “fundamental activities that involve working with a patient (symptomatic and asymptomatic) who has been diagnosed with an infectious disease to identify and provide support to people (contacts) who may have been infected through exposure to the patient.” [13]
II. Traditional v. Digital Contact Tracing Debate
Early detection and reporting of the virus can prove critical in preventing further transmission of an infectious disease by helping facilitate the separation of infected individuals from individuals who have not yet been infected.[14] However, challenges exist with traditional contact tracing such as human manpower, incomplete identification of contacts, inefficiencies with paper-based reporting, and delays in coordination from the identification of contacts to isolation of potentially infected contacts.[15] Traditional contact tracing is labor and time intensive, making it challenging to scale on a global, national or even local basis as the number of those infected continues to skyrocket.[16] Specific to COVID-19, traditional contact tracing is especially difficult in its implementation because COVID-19 spreads easily and is spread by people who are asymptomatic.[17]
Digital contact tracing has emerged as one tool for managing the pandemic.[18] Digital contact tracing differs from manual contact tracing.[19] Digital contact tracing on the other hand, does not have a manual labor downside and is potentially more effective as it is easily scalable and quick to implement.[20] In response to the pandemic, many digital tools have been developed to help with contact tracing and case identification.[21] These tools include outbreak response,[22] symptom tracking tools,[23] and proximity tracing which can be combined into one instrument or used as stand-alone tools.[24] Proximity tracing tools, also known as proximity tracking tools, use location-based (GPS) or Bluetooth technology to find and trace the movements of individuals to identify people who may have been exposed to an infected person.[25] Proximity tracing tools can be categorized as centralized or decentralized, meaning that contact history can either be processed centrally, typically by a health authority, or by individual devices.[26]
In the United States, Google and Apple recently announced the details of a digital contact tracing app they are jointly developing.[27] To minimize privacy concerns, the two technology companies have focused on Bluetooth-based proximity detection and designed the app to hold most information on users’ phones rather than servers.[28] Unlike proximity tracing, Bluetooth solutions reduce or remove the location data that is shared with digital contact tracing apps however, this still presents challenged.[29] With digital contact tracing comes major privacy concerns, in large part because of the sheer scope of sensitive data that is collected.[30] Therefore, the lack of a comprehensive federal privacy legislation in the United States and its sectorial approach to privacy could leave such digital contact tracing solutions largely unregulated.[31]
[1] WHO Announces COVID-19 Outbreak a Pandemic, WORLD HEALTH ORG.[WHO] (Dec.3, 2020), https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/ 2020/3/who-announces-covid-19-outbreak-a-pandemic.
[2] Q&A on Coronaviruses (COVID-19), WORLD HEALTH ORG.[WHO] (Apr.17, 2020), https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-adetail/q-a-coronaviruses; Statement Regarding Cluster of Pneumonia Cases in Wuhan, China, WORLD HEALTH ORG.[WHO] (Jan.9, 2020), https://www.who.int/china/news/detail/09-01-2020-who-statementregarding-cluster-of-pneumonia-cases-in-wuhan-china [hereinafter WHO Statement].
[3] Contact Tracing: Q&A, WORLD HEALTH ORG.[WHO] (May 9, 2017), https://www.who.int/news-room/q-a-detail/contact-tracing.
[4] Id.
[5] ARTICLE: A COMPARATIVE ANALYSIS OF DATA PRIVACY IMPACTED BY COVID-19 CONTACT TRACING IN THE EUROPEAN UNION, THE UNITED STATES, AND ISRAEL: SACRIFICING CIVIL LIBERTIES FOR A PUBLIC HEALTH EMERGENCY, 27 ILSA J Int'l & Comp L 55, 57
[6] Id.
[7] Clarisa Long, Privacy and Pandemics in Law in the Time of COVID-19, Katharina Pistor, Ed., Columbia Law School, (2020). https://scholarship.law.columbia.edu/books/240/.
[8] Simmons-Duffin, S., & Stein, R. (2020). CDC Director: ‘Very Aggressive’ contact tracing Needed for U.S. to return to normal. NPR .Org, https://www.npr.org/sections/healthshots/ 2020/04/10/831200054/cdc-director-very-aggressive-contact-tracing-neededfor-u-s-to-return-to-normal.
[9] Jalabneh, Rawan et. al., Use of Mobile Phone Apps For Contact Tracing to Control the COVID-19 Pandemic: A
Literature Review, (July 5, 2020) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3641961
[10] Ferretti, supra n.1, at 619 (citing World Health Organization, Coronavirus Disease 2019 (COVID-19): Situation Report-36 (Feb.25, 2020), www.who.int/docs/default-source/coronaviruse/situation-reports/20200225-sitrep-36-covid-19.pdf; Guan, W-j et al., Clinical Characteristics of Coronavirus Disease 2019 in China, 382 N.ENGL.J.MED.1708-20 (2020)).
[11] Jalabneh, Rawan et. al., Use of Mobile Phone Apps For Contact Tracing to Control the COVID-19 Pandemic: A
Literature Review, (July 5, 2020) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3641961
[12] Ferretti, supra n.1, at 619 (citing World Health Organization, Coronavirus Disease 2019 (COVID-19): Situation Report-36 (Feb.25, 2020), www.who.int/docs/default-source/coronaviruse/situation-reports/20200225-sitrep-36-covid-19.pdf; Guan, W-j et al., Clinical Characteristics of Coronavirus Disease 2019 in China, 382 N.ENGL.J.MED.1708-20 (2020)).
[13] Centers for Disease Control and Prevention, Interim Guidance on Developing a COVID-19 Case Investigation & Contact Tracing Plan: Overview, https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/overview.html.
[14] World Health Organization, Digital Tools for COVID-19 Contact Tracing, Annex: Contact tracing in the context of COVID-19 (June 2, 2020), https://apps.who.int/iris/bitstream/handle/10665/332265/WHO-2019-nCoV-Contact_Tracing-Tools_Annex-2020.1-eng.pdf?sequence=1&isAllowed=y.
[15] Centers for Disease Control and Prevention, Interim Guidance on Developing a COVID-19 Case Investigation & Contact Tracing Plan: Overview, https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/overview.html.
[16] Digital Contact Tracing for COVID-19, CMAJ 2020. doi: 10.1503/cmaj.200922; early-released May 27, 2020, https://www.cmaj.ca/content/cmaj/early/2020/05/27/cmaj.200922.full.pdf
[17] World Health Organization, Digital Tools for COVID-19 Contact Tracing, Annex: Contact tracing in the context of COVID-19 (June 2, 2020), https://apps.who.int/iris/bitstream/handle/10665/332265/WHO-2019-nCoV-Contact_Tracing-Tools_Annex-2020.1-eng.pdf?sequence=1&isAllowed=y.
[18] Thomas, Ashley et al., In This Issue: Digital Contact Tracing In the European Union- Best Practices For United States Legislators And Regulators,33 Health Lawyer 47, (October 2020).
[19] Shachar, Carmel. Protecting Privacy In Digital Contact Tracing For COVID-19: Avoiding A Regulatory Patchwork. https://www.healthaffairs.org/do/10.1377/hblog20200515.190582/full/ (Accessed Feb. 25, 2021)
[20] Id.
[21] World Health Organization. Digital Tools For COVID-19 Contact Tracing.https://www.who.int/publications/i/item/WHO-2019-nCoV-Contact_Tracing-Tools_Annex-2020.1 (Accessed Feb.2, 2021)
[22] Outbreak response tools are designed for public health responders involved in contact tracing activities and outbreak investigations. This tool encompasses the management of complex relational data of cases and their contacts through electronic data entry of case and contact information.
World Health Organization. Digital Tools For COVID-19 Contact Tracing.https://www.who.int/publications/i/item/WHO-2019-nCoV-Contact_Tracing-Tools_Annex-2020.1 (Accessed Feb.2, 2021)
[23] Symptom tracking tools use applications designed to routinely collect self-reported signs and symptoms to assess disease severity or the probability of infection due to COVID-19. Id.
[24] Id.
[25] Id.
[26] Id.
[27] Shachar, Carmel. Protecting Privacy In Digital Contact Tracing For COVID-19: Avoiding A Regulatory Patchwork. https://www.healthaffairs.org/do/10.1377/hblog20200515.190582/full/ (Accessed Feb. 25, 2021)
[28] Id.
[29] Thomas, Ashley et al., In This Issue: Digital Contact Tracing In the European Union- Best Practices For United States Legislators And Regulators,33 Health Lawyer 47, (October 2020).
[30] Id.
[31] Id.
