Please enjoy some crap I said on the radio earlier this month about COVID-19 and Zoom and privacy online and so forth. Audio courtesy (well I didn’t really ask, it’s just embeddable) of the Scott Radley Show.
Oh hiya! Before the days turn into weeks turn into months turn into years (too late?) I figured I should write something on this here bloggy thing about this topic that everyone is talking about. Now, as a caveat, I want to say we are dealing with a horrible and tragic situation where thousands of people are sick and dying, and I do not make light of that. Our essential workers are performing amazing work under horrible conditions while I sit typing safely in my home. I feel for everyone suffering, and support all those doing important things to keep society together, unlike me.
But will I continue to write the way I always write with sarcasm and bad jokes and swearing? I think you know the answer. Let’s talk privacy during a global pandemic. Just keep 6 feet away from me FFS.
So what do I have to say about privacy during these times? I am sure you are all waiting with bated breath. Part of the reason I have not written this post in weeks tbh is that I am kind of conflicted on the topic of privacy during a pandemic. Allow me to quote myself from the interview I have embedded above:
I think privacy concerns sort of get pushed back in times like this. Which may be a problem. Or not. Depending on your perspective.
This is the greatest waffling passage in the history of radio! I am very impressed with my ability to say things while not saying anything. As someone kinda sorta immersed in the privacy community, I can tell you there is a lot of chatter out there about privacy during the pandemic. Hell, anyone who watches or reads the standard news (well, not FOX) would know that.
We’ve got two camps. 1 – companies and governments are using the pandemic to curtail your privacy, and they won’t roll back those changes when we return to normal (in 2025). 2 – PEOPLE ARE FUCKING DYING EVERYWHERE SHUT THE FUCK UP ABOUT YOUR PRIVACY WE HAVE TO DO EVERYTHING TO SAVE LIVES.
Both sides have good points! So you can see why I am conflicted. It’s times like this when I turn to our Privacy Commissioner for guidance. Back in March (like a decade ago) the Office of the Privacy Commissioner (OPC) published something called Privacy and the COVID-19 outbreak. Sounds useful! Let’s see what it has to say:
The COVID-19 outbreak is raising questions about privacy issues during a pandemic. During a public health crisis, privacy laws still apply, but they are not a barrier to appropriate information sharing
I stand corrected, that is not useful at all. I thought I was the king of waffling, but I have been usurped. I read the rest of the document and it adds nothing. Here is a summary: Canada has Privacy laws, which still apply during a pandemic. OK, then!
On April 16, the OPC followed up that useful advice with a new document, A Framework for the Government of Canada to Assess Privacy-Impactful Initiatives in Response to COVID-19. Let’s see if they clarified their position in the 20 years between March and April:
During a public health crisis, privacy laws and other protections still apply, but they are not a barrier to the appropriate collection, use and sharing of information.
Yes, we know that already! I read the whole thing. I read the “Framework”. Basically they just rehash well-established privacy principles. They do stress the importance of time limiting, so when this ends in 2120 our privacy will be restored:
Privacy invasive measures should be time-limited, with obligations to end when they are no longer required
Duh! OK enough with the OPC. Maybe some of my “peers” (i.e. smarter lawyers than me) can help. Barry Sookman, in a piece called COVID-19 and privacy: artificial intelligence and contact tracing in combatting the pandemic, had this to say:
Privacy laws should not impede uses of technologies that can help ameliorate this emergency situation and which maintain an appropriate balance of privacy interests. Privacy laws in Canada have always recognized the need for balancing of interests. Privacy, as a moral or legal principle, does not trump all other laws or interests.
Sounds sort of reasonable maybe? In what may be a first in the history of my field, Michael Geist sort of agrees with Barry! In his piece entitled How Canada Should Ensure Cellphone Tracking to Counter the Spread of Coronavirus Does Not Become the New Normal, he had this to say:
Given the urgency of addressing the Coronavirus pandemic, there are obvious reasons to use every tool in the policy toolbox, even those that ordinarily raise deeply troubling privacy concerns
Hey now! Michael goes on to have some reasonable suggestions that yes, we can track cellphone data to save lives, but “there should be clear limitations on use, ensuring that the data only be used for the enumerated public health purposes”, and we should have oversight by the OPC (they seem up to the task!) and that most importantly these types of uses must be limited in time.
Superterrific Happy Hour Analysis
The OPC, Barry Sookman and Mchael Geist all seem to agree – we should use technology to help fight this, but when the pandemic ends in the year 5000 privacy should be restored. Sounds reasonable to me. But what do I know, my day drinking these days starts at 9 AM and I am not thinking clearly.