Minister De Jonge's introduction of two COVID-19 coronavirus-related apps was met with a good deal of criticism. Questions remained unanswered, and the potential impact of use of the apps unclear. Co-creation will be required in order to successfully implement the technology, according to CEO Joost Linnemann and partner / privacy law expert Hester de Vries.
During a press conference on 7 April 2020, Minister De Jonge stated that the government wishes to introduce special apps as part of efforts to combat the spread of the COVID-19 coronavirus. One of those apps - to which we will now turn greater attention - is designed to chart the patterns of contact of those infected with the virus.
The possibility of applying technology (and doing so rapidly) as a life-saving alternative to time-consuming personal research is of course basically very good news. However, before the Minister had even finished making his announcement, questions were already being asked of him - and justifiably so - around the issue of privacy.
The answer he gave to every question was that the government finds privacy very important and that the apps being introduced would have to comply with existing legislation. Unfortunately, the Minister was unable to provide specific answers to any of the questions, despite their being rather obvious in nature. For example, he could not explain how exactly the apps work, where responsibility lies, how sufficiently distributed use thereof might be ensured and - fairly crucially - whether use of the apps is going to be made obligatory. For the time being, the public must make do with the announcement that the ministry is looking at a variety of options.
You could not be blamed for concluding that the Minister has allowed himself to be influenced too easily by the positive experiences other countries have had with similar apps, while failing to prepare adequately for potential criticism. Regardless of whether or not such is the case, an unfortunate consequence of the politician’s sub-par performance is that a technological solution which may save human lives will now be viewed with suspicion by a majority of potential users, even before it has been launched. As things stand, the risk is very real that the commotion surrounding privacy guarantees will lead to people refusing to use the app. This would be a missed opportunity, because following our intelligent lockdown, we will also need an intelligent way out. The application of smart technology would appear to carry obvious benefits.
And while we should not collectively step on the brakes, the app’s success depends largely on its transparency and reliability. Specifically, there are a number of points of concern in relation to privacy. Not least, the government must take responsibility for the app and in doing so, engage with trusted partners in a spirit of cooperation. The term ‘anonymous IDs’ in currency at present is misleading, because in terms of privacy law, personal data is clearly subject to processing where the app is concerned. The app will need to meet all of the requirements under the GDPR. Furthermore, the possibility of compulsory participation is excluded, because a specific statutory basis for the violation of the basic right to the protection of personal data would need to be created for it. These are merely examples, but further work clearly needs to be done, and the Minister will no doubt be of the same opinion.
The ramshackle announcement of both apps has made clear that new technological solutions or products must be able to withstand an ethical-legal assessment in order to be future-proof and perhaps to have a right to exist at all. In order to arrive at such technologies and technological products, it is first necessary to depart from the conflict model which all too often dominates at present. In that model, on the one hand, legal professionals assist the providers of technological products in exploiting the gaps within the regulations, while on the other, legislation and supervisory bodies work to define the law more closely and enforce it more strictly in response.
It is time for a co-creation model, in which legal, ethical and democratic values are integral parts of product development. In such a model, the providers of new technologies (and technological products) work hand-in-hand with lawyers even during the development phase. And not only with their own jurists and lawyers, but also with representatives from academic law and the regulator. In the recent past, the Data Protection Authority’s predecessor, the Registratiekamer, was open to constructive dialogue with a view to reaching the best possible solutions together with companies and governmental agencies. The present situation also demands such an approach if citizens’ basic rights are to be adequately protected.
A powerful system of standards and vigorous regulation remain necessary, but the focus must at the same time be on extensive partnership. In particular, this implies partnership which is not focussed on the development of restrictions or clever legal loopholes, but instead on the creation of products and services which reveal the advantages of technology in a way which leaves important democratic values intact.
If the principles of co-creation can be embraced in the further development of the COVID-19-related apps, there is a sizeable chance that, sooner or later, we will possess technology which will structurally help society while respecting individuals’ rights.
