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Lord Sandhurst QC is a past Chairman of the Bar of England and Wales (as Guy Mansfield QC), and a current member of the Executive of the Society of Conservative Lawyers.

On May 4, the Government started, through its agency ‘NHSX’, a trial in the Isle of Wight of an automated system for tracing and informing those on the island who had been in contact with a person who has been found to be infected with Coronavirus.

Under the scheme, individuals voluntarily download an application (app) on their smartphone.

Once the app is turned on, every time that smartphone is in proximity with a smartphone that also has the app (and which is turned on), it updates the NHSX central server.

If someone who has been using the app becomes infected, the information is loaded onto the NHSX server and alerts are sent to all those whose smartphone had notified the server previously of contact with that person. They can then take steps to self-isolate or seek treatment.

So, the dataset charts all its users’ interactions, and the NHSX builds up a picture of the spread of the infection among its users.

The crucial questions are: will people download and use the app in sufficient numbers, will it work as intended, and what are the implications for our personal privacy both in the short term and longer term?

Together with Benet Brandreth QC and Simon Murray, I explored the current literature and what the app involved.

We concluded that to give automatically and regularly personal information about one’s contacts and health to the State is an unprecedented increase in overt digital surveillance.

This can be justified if it enables an effective fight against Covid-19.

But it is critical that data provided is not misused by government or anyone else. The NHSX scheme must be time-limited and not continue indefinitely.

The app will test whether a balance can be struck between the legitimate aims underlying its introduction and the rights and freedoms of individuals.

It is important to get it right now because of the precedent it creates for the future.

The NHSX model has been developed with the assistance of the National Cyber Security Centre (‘NCSC’, and part of GCHQ).

The individual leading for NCSC in developing it, Dr Ian Levy, gave details of its proposed operation in a blog post on May 4.

He said that it can run well on supported devices, only uses software development tools supported by Apple and Google, will not drain battery or stop other apps working properly, strongly protects its user’s privacy and security, and will provide the insights which public health professionals need better to manage the virus.

We hope he is right. An app which does not provide reliable information about the spread of the virus or routinely indicates a need to self-isolate on the basis of identification of a connection could not possibly justify the great invasion of privacy that is involved.

The merits of an effective and safe system are explained by Prof Christophe Fraser of the Oxford University Nuffield Department of Medicine.

He suggests that mobile contact tracing carefully deployed using key epidemiological parameters, if combined with critical ethical principles, can save lives, reduce the number of people needing to remain in self-isolation, and support as many people as possible safely and responsibly to start returning to active life again.

He believes that the epidemic can be stopped “if approximately 60% of the whole population use the app and adhere to the apps recommendations. Lower numbers of app users will also have a positive effect; we estimate that one infection will be averted for every one to two users.”

Since no effective vaccine is likely to be rolled out for at least a year, and social distancing severely curtails freedoms, our paper concluded (as had a recent Policy Exchange paper) that the merits of testing and contact tracing – which do not involve the direct curtailment of liberty – justify the loss of some privacy.

That being said, to place such personal Big Data referable back to its owner raises profound ethical legal and operational questions (which we explored).

In short, only a voluntary system is acceptable, but if it is a voluntary system and to be taken up by a sufficiently large number of people, we must be provided with transparent reassurances on how the data will be stored, analysed and used.

A high level of trust is vital to getting a critical mass of people to subscribe to the app and to use it routinely.

Its use must be time-limited and not indefinite.

The Coronavirus Act 2020 must be amended to give a statutory basis to a new Testing and Tracing Command Centre (as recommended by Policy Exchange) to oversee the whole process.

In turn, that body should be subject to judicial oversight.

But if the app is efficacious and works in practice, then it will be an effective tool to speed up the process by which social distancing and other restrictions on our freedoms can be relaxed. 

The Society of Conservative Lawyers will broadcast a webinar on this topic, chaired by Sir Bob Neill MP, at 6pm on Wednesday 13th May.

For details on how to join the Society and attend the webinar, as well as its other Covid-19 related research, please visit https://www.conservativelawyers.com/.

20 comments for: Guy Mansfield: Overt digital surveillance can be justified in a crisis. But it must be time-limited.

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