Joint Committee on Human Rights
Oral evidence (virtual proceeding): The Government’s response to Covid-19: human rights implications, HC 265
Monday 4 May 2020
Members present: Ms Harriet Harman (Chair); Lord Brabazon of Tara; Ms Karen Buck; Joanna Cherry; Lord Dubs; Baroness Ludford; Baroness Massey of Darwen; Dean Russell; Lord Singh of Wimbledon; Lord Trimble.
I: Dr Orla Lynskey, Associated Professor of Law, London School of Economics; Dr Michael Veale, Lecturer in Digital Rights and Regulation, University College London.
Oral evidence: The Government’s response to Covid-19:
human rights implications
Dr Orla Lynskey and Dr Michael Veale.
Q10 Chair: Good afternoon, everybody, and welcome to this session of the Joint Committee on Human Rights. As our name implies, we are Parliament’s Select Committee on Human Rights. Half of our members are MPs, and half are Peers—Members of the House of Lords.
Our concern for this inquiry is human rights in the Covid crisis. We are looking in particular today at the contact-tracing app which the Government are planning to introduce. A number of competing human rights are at issue here. The Government obviously have a right to protect life—that is one of the most important rights—and there is a right to protect freedom of movement, and it is important not to infringe that. That has obviously been impacted by the lockdown. Also, the contact-tracing app is intended to help ease the lockdown, but that obviously has personal privacy implications in relation to the data being collected.
To help us understand this and prepare our report as we scrutinise the Government’s plans, we have two panels today. The first is made up of academics: Dr Orla Lynskey, from the LSE, and Dr Michael Veale, lecturer in digital rights and regulation at UCL. They will help to set the scene for us before we hear from the man who is responsible for rolling out the contact-tracing app for the National Health Service and the Government, Matthew Gould. Also on that panel will be Elizabeth Denham, who, as the Information Commissioner, is responsible for data protection.
Perhaps we can go ahead with our first session. We are really grateful to you, Orla and Michael, for helping to set the scene for what is a very complex set of issues. Of course, we all need to understand them, because it is our contacts who will be traced on the app. Thank you very much for joining us.
I would like to ask the first question. How the app will work, and what are the risks to privacy?
Dr Michael Veale: Thank you. I will start with that and give a generic overview of how a centralised system, such as the one the NHS is proposing, will work, and we can then talk later about alternatives. Effectively, these types of apps use Bluetooth and they estimate the distance and duration of any contact that you have with another person. The apps will regularly emit what look like random numbers to people on the street, and they will write down the random numbers that they see from other people’s devices. It is almost like keeping a diary of the devices that you have been near.
On the trigger of testing positive—or, in the case of the UK, self-reporting as positive—a user of the app, perhaps through some authenticated process or by having completed a checklist of symptoms, would enable the numbers they have seen in the environment to be uploaded to a central server. That central server will be able to take any of those numbers, which to someone on the street might look random, and decrypt them into an identifier for the specific device that emitted the number. The user cannot decrypt them, but the central server can turn any of these numbers into an identifier that allows a device to be singled out. At that point, an analysis can be made of how risky someone’s encounters were. Anybody who is thought to be at risk, by virtue of being close to a person who uploaded the information about those they saw, can be contacted by phone with further instructions.
Privacy risk is what this is all about. There are a few risks. One is that, in this type of system, the social network—the graph of people you learn about in the cloud—is very sensitive. It can contain clusters of family, friends, employees, people in the same political movements and so on, because it is a cluster of physical interactions between people. That is one aspect.
Another risk is that, although to people on the street the numbers look random and as though they are always changing, to anyone who controls the central server all the numbers look the same. Therefore, effectively this system is vulnerable to an attack. For example, if somebody who controlled the server put a receiver at a passport booth and saw one of the numbers that someone had emitted, they would know who that person was and what their future movements were in the coming days and weeks. That is a persistent tracking capability.
The third worry, which is less about privacy and more about power, concerns function creep. Because the identifiers in this way of building the system are persistent, you can update the app to include hard registration: that is, by asking for passport or national insurance numbers, and so on. Again, that would allow for progression to, say, a kind of traffic light system such as was trialled in China for a while, although I do not know the details of that system.
However, the idea is that somebody could be risk-scored on the basis of their activity and asked to show that risk score. The score would then be associated with them as a person. Even if the first version of this system does not do that, this potential way of laying the foundations for the technology, using a central server, allows for that to be built up to in the future.
Chair: Thanks very much. What you are talking about is mission creep, is it not? What needs to be done before the app is launched to make sure that the three risks that you have identified are dealt with?
Dr Orla Lynskey: As a prior step, we should consider that in this instance we will cede a bit, or potentially a lot, of privacy in order to serve a number of objectives, such as the protection of public health. However, in so doing, we need to ask whether the measures that we are proposing are suitable for achieving that aim of protecting public health.
So before ever getting into the details of an app we need to ask whether it could be effective in achieving that purpose. It is worth flagging up at this point that doubts have been expressed about this. The Ada Lovelace Institute, for instance, has queried whether this type of app could achieve the stated objectives. In Singapore, which has the high watermark for contract tracing, the product lead for the TraceTogether app has emphasised that we should adopt a human-led approach to contact tracing.
Two points stem from that. First, digital contact tracing should not be at the expense of manual contact tracing, as that would be very worrisome. Secondly, we need to have some parameters to assess whether, if this app is rolled out, it is effective in doing what it is supposed to do. If not, it should be dismantled.
That leads to the need for a certain number of privacy safeguards. If people trust the app, we might have enhanced uptake of it, which would increase its effectiveness. Therefore, privacy plays an essential part in enhancing trust. Here, we may currently lack three things. One is transparency about what exactly has happened. The second is how the app is being developed: for instance, under data protection regulations we should have a data protection impact assessment. To my knowledge, NHSX has not yet produced that publicly so that it can be open to scrutiny. Thirdly, as Michael has said, the centralised nature of what is being proposed—the idea that we will be recording data on a central server—makes us very vulnerable to data abuses and potential mission creep. Here, the UK is very much an outlier on the international stage, and I would ask whether we should question that centralisation.
In order to avoid that kind of mission creep, we need to ensure that there is respect for core data protection principles. Here, I would highlight in particular purpose limitation—the idea that we create something for a specific purpose and then do not repurpose it or use it for other, incompatible purposes. We really need to know the detail of the purposes before we can assess whether the system complies with those principles.
Chair: That was really helpful and really clear from both of you. The next questions come from Baroness Massey.
Q11 Baroness Massey of Darwen: Again, thank you for the clarity in taking us through that. I want to press you a little more about privacy and storage, and will ask two questions together.
I understand from an opinion poll that most people asked are very concerned about the data and privacy issues. I also understand that in several countries there is a reluctance to use centralised systems. You have already mentioned that, but perhaps we could go into that again. When considering how data will be collected, stored and used, are there ways of holding individual users’ data that are less intrusive than others? Can you also please explain the significance of whether the data is stored locally or centrally and what that means for users’ privacy protections?
Secondly, do you consider that the Government/NHSX have opted for a way of doing the tracing app that poses the least risk to privacy while still being effective?
Dr Michael Veale: What I laid out a moment ago was a generic way of us making a centralised application. Some countries, like Germany, were initially going down this path and have swapped nationally to a decentralised approach. A team of 12 universities and I created a system called DP-3T, which is a decentralised way of doing contact tracing with the same benefits and goals as a centralised mode but with the benefit that you have not created a centralised database of sensitive data. This system underpins the systems in Germany, Estonia, Switzerland, Austria and some other countries. So there is another way to do this.
In this system, the Bluetooth looks quite the same. People are recording what they hear and emitting identifiers from their device. But when somebody tests positive, instead of uploading the information they see about others in the world and uploading other people’s emitted information, all they do is emit the identifiers they have sent out. In this case, the server never knew them at all; it had nothing to do with them. Basically, all the random numbers which before that time meant nothing get transferred on to the phones of everyone else in the country. It is effectively a checklist. Someone will say, “Have I seen any of these random numbers?” That check happens within the privacy of their own phone. If their phone has seen them, at this point their phone can, without a central server, say, “You may be at risk”. In that way, no central server of data is created.
What are the trade-offs in this situation? We work very closely with epidemiologists. There are ways of analysing the data and the spread of the disease in a decentralised system that are privacy preserving, so epidemiologists can still get the data they need. Another trade-off is that slightly more data needs to be transferred around the system. The third relevant trade-off, which is quite positive, is that it creates difficulty in building mission creep on top of the system. Because everything is created and stored on individual’s phones, you can audit what is happening on them. No change can happen behind the scenes that you might not be aware of. It does not leave a central database that can be hacked. That is a positive benefit.
Another related, and important, difference is that the centralised and decentralised systems do not play well with each other across borders. You cannot make them work together without the worst of both worlds. Really undesirable things happen when you interoperate them, or try to. For example, the Republic of Ireland has announced to its Parliament that there will be a decentralised system, so there will be questions of interoperability there, as well as across Europe. Apple and Google, inspired by our system, rolled out support for a decentralised system, so we expect that to be the case more widely.
The last part of the question was about what the NHS has done in this case. One of the core reasons—the only real reason I can see—why the NHS system plans to roll out with a centralised model relates to the unique, outlying, factor that it is rolling out with self-reporting. I note with interest that the French Minister for the Digital Economy, Cédric O, said in a blog yesterday that France would never roll out its proposed centralised app with a self-reporting function and that it would be based only on genuine test results, because there is a lot of scope for misuse if you allow self-reporting, as it enables you to trigger risk scores on other people’s phones when they may not actually be at risk and opens up the need to control this data in some greater way.
This is a concern, and a few consequences come from it. Some have said that you can detect fraud if you have a centralised system; in a centralised database you can identify outliers. With my personal experience of these technologies I find it hard to believe that there is a foolproof way to detect fraud in self-reporting of that kind. It may be possible to detect someone doing something quite obvious and large scale, but a lot of small and medium-scale attacks, such as trying to put a certain person in quarantine or self-isolation, are unlikely to be detected as fraud.
What worries me is that the only way to stem the boy-who-cried-wolf problem is to hold that boy to account by making him register on the system with his real identity—his real name and so on. That is the natural progression for that approach. The epidemiologists who we work with do not believe, in their modelling, that self-reporting is necessary for countries tackling the crisis with an app. Indeed, nor do the other countries across Europe that also have epidemiological teams working on this. The evidence for that should be very carefully scrutinised.
Baroness Massey of Darwen: How would you explain all this to the general public?
Chair: Shall we move on to Lord Trimble?
Q12 Lord Trimble: Thank you for that. I listened with interest to the somewhat technical description of various possibilities. I noticed that, with regard to the business of data control and regulation, we are advised that the key principle boils down to the question of what is necessary. Once you pose that question, you have to add, “For what purpose?” The purpose will have to determine the nature of things. For us, the context obviously has to be what we have experienced over the last few months. Consequently, that puts an obligation on us.
Chair: Hello? Have we lost David Trimble? Perhaps our witnesses could start answering what they have heard of his question, which was about data minimisation.
Dr Orla Lynskey: As Lord Trimble was saying, the idea of data minimisation is that you identify the purposes for which you want to process or use data. You should not collect or process any more data than is needed for those stated purposes. As Michael was saying, one of the risks with a centralised system is that you can start off processing certain types of data. That might be self-reported data—I have the same concerns as Michael about that—or data provided by a clinician that somebody has been diagnosed with Covid-19. I have seen no description of how the NHSX app will work, but it seems from some of Matthew Gould’s previous statements that there will be a capacity to add extra data to this system. In evidence last week, he indicated that individuals might, for instance, be able to upload something like their location data.
This poses a big risk for a number of reasons. First, if the aim of the app is proximity tracing—determining who was in relevant contact with or proximate to an individual—you do not need to know where those individuals are in order to do that. We would need to query why location data would be added at a later point. We are hearing indications that it could be useful from an epidemiological perspective. However, that has to be balanced against the fact that if I reveal my location that will also simultaneously reveal the location of all my contacts, especially if location data is combined with contact tracing in this way.
That decision does not just affect me, it affects everybody I have been proximate to. That could really hamper trust in this system. Location data is inherently incredibly sensitive. It says where you were at a particular time. Were you at your counsellor’s? Were you at the doctor? Were you at a sexual health clinic? Who have you been close to? As Michael said, you can build up a graph of who people have been in contact with and what their movements are.
That would require a higher level of justification if it were to be added after the fact, as it were. There is an inherent risk that if you create a system that can be added to incrementally, you will do so in a way that is very privacy-invasive, which might escape oversight and safeguards.
Another query here is why we would collect location data or something similar. If it was to identify hot spots of the virus, for instance, we would have to think about digital exclusion. What about areas where people do not have mobile phones, or communities who, even if they have mobile phones, might have very valid reasons for being reluctant to install an app with these possibilities and capabilities? There might also be gaps in that data.
So there is merit in at least a broader conversation about whether the risks of allowing for added data functionality are balanced against the broader trade-offs, or indeed worth it.
Chair: Can I follow that up with a question? First, bearing in mind that the Government have started off on the course of centralised data operation for this contact tracing app, is it possible at this stage to change to a different model, given their aspiration to roll it out, or would that involve weeks and months of delay? If the latter, they would not be able to use it for what they want, which is to ease the lockdown as soon as possible.
Secondly, might they be able to start with a locally held data system and move to a central one, or vice versa? How interchangeable are these systems?
Dr Orla Lynskey: I would like to mention a broader point, because Michael will be much more competent in explaining the technical possibilities. If one of the features relevant to the success and effectiveness of this app is uptake, you will endanger or jeopardise the aims of the app by not getting this right from the outset.
Chair: That is a different point. It is really the operational point that I am after. From where they are now, bearing in mind that they have probably been planning this for ages, would moving to this other model, which you think is as efficacious but more protective of privacy, mean a major delay? Michael, could you help us with that?
Dr Michael Veale: That is a good question. First, it is not actually very difficult. In our system, for example, the code has always been open, and member states of the European Union have just been taking bits of the code, modifying them very slightly and putting them into their national apps. Many of the things that NHSX will have done already will be fully interchangeable, such as the symptom checker or any links to test centres. Those will be completely the same for both types of app. It really just involves replacing a small part inside, which can be done with an open and fully audited code which many countries are using and rolling out quickly. I do not see that as a particular challenge. Obviously it should be checked, but it does not involve upheaval and starting again from scratch.
However, by switching systems in the middle you would create two systems that could not interoperate at the same time. If you wanted to run one after another—that is, change the model two weeks in—that would create a lot of friction in the system, because half the population would not be able to work with the other half. That is wholly undesirable.
Q13 Ms Karen Buck: We have covered some of the points in my questions, but I would particularly like to ask about the vulnerability of centralised data. The word “hack” was mentioned. We have seen some very major breaches of data in recent years both in the NHS and in the private sector. What do you think the potential vulnerability might be and the extent to which what is said and done over the coming days will overcome any public concern about that?
Dr Michael Veale: There are two different types of issue here. First, is this data secure from those who are allowed to access it? A decentralised system is inherently more secure in this way, because there is no decentralised database. Even so, with a centralised database, best practices and so on can ensure that the data is as secure as it can be, and the G-Cloud and other resources from the Government relating to the procurement of systems like this have been improving that greatly.
There is another separate element: is it secure from the public expectation of who can access it? In this case, when we look at the data protection regulations, the idea of who is a data controller is not very protective. You can say that the NHS and the Department of Health are data controllers, but that does not really stop other agencies from accessing it, not only under the Investigatory Powers Act but under normal government data-sharing rules. Hard legal limits for trust may need to be considered—so that we know, for example, that the Home Office cannot access this data—in order to get communities that may be worried about that to uptake the system.
The last issue on this point relates to a road map. Security and access to the data in the future require setting out a very clear road map of where this is going, who might have access to it and what kinds of data might be integrated in the future—not least location data, as Orla said, which makes this more appealing for other kinds of government policymakers to look at. Without that road map and accountability for that road map, it is very hard to say that the system is secure against mission creep, if you want to think of it that way.
Ms Karen Buck: Given that the public seem at the moment to be very positive about the app but are flagging up in opinion polling that that is conditional on very rigorous safeguards and privacy, would it be helpful to talk about the system already being capable of having layers added to it in future, or would it be safer and simpler to try to stick to a single purpose?
Dr Michael Veale: It would be safer and simpler to stick to a single purpose. This is where things like code scrutiny fail. If you say, “Hey, we’ve got an external person or body auditing our code”, that is only in a snapshot of time. The question is not really, “Is your code secure today?”, although that is still key. Everything should be published, because security by obscurity does not work; it was debunked about 100 years ago in computer science. Instead, it really needs ongoing scrutiny as well as scrutiny of what might come in the future. I would not be reassured by being told that some people say it is fine right now, because, as you say, that is not the public’s worry.
The Chair: That leads us on very neatly to the questions posed by Joanna Cherry.
Q14 Joanna Cherry: You talked there about hard legal limits and accountability. Do you think the Government should introduce legislation to protect the public’s privacy and address human rights concerns about this app? Do you think that should include oversight and review mechanisms such as an independent commissioner and a tribunal to deal with complaints about privacy breaches or civil liberties breaches?
Dr Orla Lynskey: I can answer that question. Legislation here would be desirable for a few different reasons. First, a lot of the principles that we have been talking about are all set out in the data protection framework. However, they are quite flexible principles, so it would be useful and helpful to be transparent to the public about how those principles will be applied in this particular context. That would increase trust again.
Secondly, the introduction of an app raises issues that go beyond data protection and privacy, and in this context we have not really discussed them. They include questions such as whether individuals might find themselves compelled to produce the app in certain contexts or download it. That would go beyond the remit of the Information Commissioner, for instance, and would relate to broader rights such as non-discrimination. Also, for human rights purposes, if you introduce a legislative instrument, you then of course have the declaration of compatibility and so would put the whole framework on to a safer footing. There are reasons that would support the introduction of legislation.
Regarding the kind of safeguards that legislation might include, Professor Lilian Edwards at the University of Newcastle spearheaded an academic-led approach to writing a Bill that set out certain safeguards. Some of the key elements that are covered relate to the voluntary nature of any app, stating that it should not be made compulsory in any context and that there should be no detriment to individuals as a result of their failure to download the app or to have their phone on them in any particular context. It would also, as I mentioned, make a lot of the protections that we see in the data protection framework more concrete.
What is key here is a sunset clause to indicate when we would no longer need the app. What happens in those circumstances? Where does this data go, and in what ways might it be used? How will we know when we are ready to get rid of the app? Having those kinds of safeguards in place will be very important in order to enhance public trust.
Dr Michael Veale: I will briefly add a couple of other points that promote the need for legislation. One is that the lawful basis for using this app is unclear in some areas. Under data protection regulations there are rules about automated significant decisions, which the Council of Europe specifically said last week the app would trigger in relation to Convention 108, to which the UK is a signatory. In my view, a legislative basis would be needed for making decisions that ask someone to self-isolate.
There are other questions related to triggering provisions such as Article 36 of the GDPR, the data protection law, which is about consulting the Information Commissioner beforehand. Professor Lilian Edwards’s Bill also raised the issue of the interaction with other instruments—the idea that some of the existing coronavirus regulations could already be interpreted as compelling someone to provide this app, which is a concern. Also, it could interact with things like the Malicious Communications Act in relation to entering data. It might interact with other rules and create unwanted effects, and those would need to be made particularly clear to avoid prosecutions that do not seem legitimate.
Joanna Cherry: What about oversight? What about having an independent commissioner to oversee this app, or having a tribunal where people can make complaints? Could that be included in the legislation?
Dr Orla Lynskey: Yes, absolutely. Sorry, I forgot to mention that. The key thing here is that we are complying with or keeping in mind the conditions for oversight that are generally applicable from the human rights context. We can see from case law of the European Court of Human Rights that you want an independent, impartial oversight system with proper procedures in place.
An argument for a specific commissioner is that this oversight needs to be in real time. It needs to happen fairly quickly to track the way the app is being used, to map issues as they arise, and to enable individuals to have the ability to complain and to seek redress if they experience difficulties as a result. That indicates that an independent commissioner, similar to the Biometrics Commissioner for instance, could be appropriate here and could be used as a model.
Chair: Thank you both very much indeed for your extremely helpful and illuminating testimony to us.
Examination of witnesses
Matthew Gould, Elizabeth Denham, Simon McDougall and Dr Ian Levy.
Q15 Chair: With the issues very well aired and set up by our last two witnesses, we now move to our second panel, who are basically the man and the woman in the hotseat: Elizabeth Denham, the Information Commissioner, whose responsibility is data protection, and Matthew Gould, the chief executive officer of NHSX, who has responsibility for devising the rolling out of this contact tracing app. We are particularly grateful to both of them, but especially Matthew, because he is doing the Downing Street briefing this afternoon. It is really to your credit, Matthew, that you have subjected yourself to scrutiny by us on a day when you are going to be in Downing Street doing the briefing. Do we have Matthew with us yet?
Matthew Gould: Yes, you do.
Chair: Thank you very much for joining us. My first question is to you. How will this contact tracing app work? Obviously it is really important that we all understand what it is going to do, because we are all going to be asked to sign up to it. What data will be collected? How will it be stored, and what will it be used for?
Matthew Gould: Thank you for inviting me. I am very glad that we are airing precisely these issues, because if we are to get the level of engagement that we need with the public we know that we will need to win their trust, which means dealing with precisely the issues that you are probing with us.
I will start with how it will work. Essentially, once you download and install the app it will start logging the distance between your phone and other phones nearby that have the app installed. It measures the distance using a form of Bluetooth that is less energy hungry than normal; it is called Bluetooth Low Energy, appropriately. That will store a log of proximity information on your phone. It is worth saying, because this is pertinent to questions of privacy, that at this stage the app does not know who you are, who the people you have been near are or where you have been. We are not saying that people have to give personal information to use the app, but we are asking people to enter the first half of their postcode, which is not nearly enough for us to have any idea who they are but is enough for us to be able to usefully tell geographically where we might be building up hotspots and issues that will help in managing the crisis.
The app gives every app user a rotating, randomised identifier. It does not know, if I have the app, that I am M Gould; it knows me as a number. If I come close to you, it does not know it is you; it knows you as a number. All it has is these matching pairs of identifiers. They will then be stored on my phone, and on your phone if we both have the app. Then, if I become ill with symptoms of Covid-19, I have a choice about allowing the app to upload that information. That in turn will trigger a notification which the NHS can send, anonymously, to other app users with whom I have come into significant contact over the previous few days. That is at the heart of it.
I will say a couple of other things that I think are important. First of all, we have put privacy right at the heart of the app and the way it works. It is designed so that you do not have to give it your personal details to use it. That is really important: it does not know who you are, who you have been near or where you have been. Secondly, the app is voluntary. You need to choose to download it, to enable it, to upload your data if you become symptomatic. You can always choose to delete it.
Thirdly—this is the theme we will develop later at the press conference—the app is not by itself a silver bullet or stand-alone solution; it is part of a wider strategy of test and trace, and it makes sense as part of that, sitting alongside testing and more traditional contact tracing. That last point is really important, because it is the link to contact tracing that means that, whether you have the app or not, the wider strategy serves the whole population, because we are acutely conscious that not everyone has a smartphone and not everyone can or will download the app. It is by embedding it in the wider strategy, alongside more manual contact tracing, that we can ensure that we do not leave people behind.
The very last thing is that we tried really hard to take an approach based on transparency. We have said that we will open-source the code, we will publish the privacy notice and the privacy assessment, and we will publish the privacy and security models. We have been publishing blogs to set out what we are doing. We are doing all of this at enormous speed, so we have not done it quite as early as we would like, but we set up an ethics committee, chaired by Jonathan Montgomery, the former head of the Nuffield Council on Bioethics. We work very closely with the Information Commissioner. We are trying very hard to do the right thing in the right way.
Q16 Lord Brabazon of Tara: Mr Gould, I am speaking to you from the sunny Isle of Wight, which is about to find such fame as it has not had for years and years. I am holding my smartphone in front of me. I am looking forward to hearing when I will be told what to do and when to download the app, which I will willingly do. Can you say, though, what percentage of the population need to download this thing to make it effective? Will there be a lower age limit with regard to people downloading it? What about the over-55s, only half of whom, I am told, have smartphones? They are perhaps the most vulnerable group. By the way, the Isle of Wight is above average age.
Matthew Gould: First, the Secretary of State will discuss some of the details of the timing for the Isle of Wight phase at the briefing at Downing Street shortly. However, it is worth saying now that we are profoundly grateful to the people of the Isle of Wight for their participation in it. It is precisely by seeing how it works—doing this for real and seeing how the different bits of the strategy slot together—that we will be able to make sure that we iron out issues and get the hinges right between the different elements. It is an important moment for making sure that the strategy works as we need it to.
On your question about the percentage required for it to work, we do not have a minimum percentage. We have seen that in other countries, including Australia, Singapore and Norway, somewhere above 20% of people are downloading it. Even at that level, the app starts to give us some really important insights into symptoms, how the virus is spreading and how we need to deal with it. Even at that level, we still get great value from it.
If we can get to higher levels of participation—40%, 50%, or above—the app can make a big difference in identifying people who have been in touch with cases of Covid-19, or suspected cases, and making sure that we can identify and isolate those people earlier, faster and more effectively. That starts to materially affect our ability to remove, with confidence, some of the restrictions that people have been living under.
This goes back to the point that this is designed to be not a stand-alone tool but part of a strategy. It is precisely by embedding it in a strategy alongside contact tracing that we can be confident that, whatever level of the population has the app, we are doing this in the right way and capturing the contacts we need to capture.
On the age of users, we hope that as high a proportion of people as possible will download it. However, I am conscious that smartphone use goes down among the more elderly of the population. Again, that is why we need to make sure that this is part of a strategy alongside contact tracing, so that we are not reliant on just the app. It needs to sit alongside and be supplemented by contact tracers who can speak to people who do not have the app but who none the less may have come into contact with cases of Covid-19, or developed symptoms.
In relation to young people specifically, we will take advice to make sure that we get this right. We are speaking to the Information Commissioner and will speak to the Children’s Commissioner, because it is really important that we get that call as right as we can. The honest answer is that we do not yet know what the answer is; we are trying to work it out.
Chair: So it might apply to children as young as 10 or 11. Is that right? How old are children when they get smartphones now?
Matthew Gould: My daughter is nine and is lobbying for a smartphone already. For the Isle of Wight, we are asking people over 16 to download the app. We will take advice on what to do for those under 16. I do not want to say precisely what the right answer will be, because we need to speak further to the Information Commissioner and speak to the Children’s Commissioner and really try to work that out.
Chair: If this is all so anonymised and safe, why would you worry about a 12 year-old downloading the app? It seems a bit of a contradiction to say that it has no problems but that you somehow have to protect children from it.
Matthew Gould: First, this is new technology. There are a lot of countries and companies trying to develop it and deploy it at scale, and some already have. However, we do not yet know exactly how it will work; we do not know all the consequences. There will be unintended consequences and there will certainly be some things that we have to evolve. We need to level with the public about the fact that when we launch it it will not be perfect and that, as our understanding of the virus develops, so will the app. We will add features and develop the way it works.
In that context, we need to think through what the consequences might be for children. For example, a user might get a message that it might be reasonable to expect an adult to process, but which could be really scary for a child. It is not that we have identified particular issues that might mean that children should not use it, but there is an additional obligation on us to make sure that we have really thought through all the angles of what it would be like for a child to use the app—how the messages and understanding will land, what the consequences will be, how it feels from the child’s point of view—before we make that final decision.
Chair: Thank you. We turn to Dean Russell for our next question.
Q17 Dean Russell: Thank you, Chair. I thank both witnesses for being here. To give a bit of context to my question, I have done a lot of work in the digital space over the last 20 years and have also lectured for the Institute of Data and Marketing, the IDM, and the Data & Marketing Association, the DMA, through that time. Obviously, GDPR has been a massive issue over the past couple of years.
That is the context to my question, which is about the data usage within this. What sort of data will be collected? I appreciate that this will be very anonymous at the moment, but is there a risk of creep over the next year or two? At what point will that data end its life? Does it get deleted once it has been used and somebody gets a ping to say, “You’ve been in close proximity to somebody’s phone and you should therefore get checked out”, or does it continue to be stored somewhere? How could that data be used again in the future? This is not just about how it is used now but about how you anticipate the data privacy and data protection working in the longer term. How will the data be stored and used?
Matthew Gould: We have set out the very minimal collection that we will do now. We have said very clearly that we will explain in plain English any changes that we make. If, for example, we move to giving people a choice to offer more data, which could be useful, we will make it a choice and explain it very clearly. Our best defence against creep, as you describe it, is transparency and an assurance that we will do what we do openly and that sharing further data will be on the basis of choice.
You asked specifically about what happens to data if, for example, somebody chooses to delete the app, or at the end of the crisis. First, if users delete the app, all data stored on their phone that has not already been voluntarily shared with the NHS gets deleted. It is automatically deleted from the phone on a continuous, 28-day cycle.
If data has been shared with the NHS by choice, it can be retained for research in the public interest or for use by the NHS for planning and delivering services. Obviously, that would be done in line with the law and on the basis of the necessary approvals required by law.
Dean Russell: Can I just ask Elizabeth Denham that question from an ICO perspective?
Elizabeth Denham: From an ICO perspective, we know that the law was designed to flex in a time of emergency, but we play a very important role as the independent regulator in looking at the app in its design phase and in monitoring each iteration of the app and making sure that it does what it says on the tin.
The other really important part of our role as the independent regulator is doing a robust audit of how the app has performed and whether offboarding or deletion of obsolete data is taking place. In a sense at the front end, in the design of the app, we are a critical friend and we can give peer-reviewed technical advice to NHSX, as we have done. Matthew came to me very early in NHSX’s thinking about the app to make sure that there was assurance going forward, because all of us expect digital tools to be used.
We have seen digital tools being rolled out for tracking and tracing around the world. There is a lively debate about centralised versus decentralised, and we can get into that, but it is important that there is an independent oversight body to look at what is happening and to make sure that it is being rolled out in a way that is effective but that also protects the public interest in privacy and security.
Dean Russell: Given that you have been involved in the development of the app, do you consider the ICO to be the independent body able to do that?
Elizabeth Denham: We consider ourselves to be the independent body because we are not sitting at the design table. We have been given some technical material, and we have looked at it. We expect to look at the data protection impact assessment, which is the key document for us to critique and comment on. We also expect to monitor how the public respond to the app when it is rolled out. We will take complaints and do investigations and audits, but it is also really helpful that NHSX wants to talk to the independent regulator at the design phase to make sure that privacy and security are built in. However, we are not across every document and every plan about what is coming next. We can play both the expert adviser and the enforcer.
Dean Russell: Thank you.
Chair: Following on from what Dean said, it highlights to me that it is quite difficult to be both invested in the design and development of this system—obviously it is to NHSX’s credit that it has shared lot of details with you and asked for your input—and then to be policing and enforcing the right to privacy thereafter. Would you not then be criticising yourself if NHSX accepted your advice, but it turns out that it is not working in the way it should?
I want to press you a bit more on Dean’s point that you are quite deeply into it even though you are not sitting around the table. How can you be both sharing the design and independently enforcing afterwards? It sounds to me as though it needs to be a separate person who has not been involved in shaping the design.
Elizabeth Denham: The model I am responsible for administering has us playing a role as an expert adviser, not just on this app, but on any innovation that is rolled out that has significant privacy impacts. The data protection impacts come to our office to be commented on; we do not approve them, but we comment on them. This is not different from us looking at a new biometrics system or us commenting on the use of a new immigration tracing and tracking system. We give expert advice; we do not sign-off or approve something. If we did, that would conflict with us being able to carry out our audit and enforcement measures. The law that Parliament gave me to administer has us playing all those roles.
I am not sure how going out and trying to build another commissioner’s office and another oversight body very quickly would work, given that we have to move at pace here. As I said, my roles are defined in law as being an adviser, commenting on new initiatives, enforcing, investigation, audit, and sanctions at the end of the day. We have powers, such as stop processing orders. We can do on-the-spot inspections without a court order. We have the ability to compel information from a public body or a private sector organisation, so we have broad powers to be able to carry out the full spectrum of our role. I do not think this takes away from me doing that.
Chair: Thank you. Baroness Ludford has the next question.
Q18 Baroness Ludford: Thank you, Chair. Ms Denham, you wrote a personal blog about three weeks ago in which you said that the starting point for contact tracing should be decentralised systems that look to shift processing on to individual devices where possible. The document on the ICO website, called COVID-19 Contact Tracing: Data Protection Expectations on App Development, makes the same point.
However, NHSX does not appear to be following that advice in the app that it is developing. I do not think it came out terribly clearly from Matthew Veale’s evidence, but we understand that it is a centralised system. We also understood from Matthew Veale that it would not be that difficult to switch to decentralised. Why has NHSX not followed your advice? Lastly, when are you going to get the data protection impact assessment?
Elizabeth Denham: We expect to get it very soon; I have been told that by NHSX. NHSX has also agreed that we can perform a voluntary audit on the app and the system when it is appropriate to do so, so if we have a lot of complaints from the public, for example, the door would be open for us to do an audit. Matthew Gould has made it clear that we will have the ability to do that.
On the question about my comments in my blog and in the expectation document, we wrote that document to guide not just NHSX but other providers and developers that may be developing similar apps. It is a generic document about best practices. Since I am the Information Commissioner, if I were to start with a blank sheet of paper, it would start with a decentralised system. The Committee can understand from a privacy and security perspective why that would be so, but that in no way means that a centralised system cannot have the same kind of privacy and security protections.
It is up to the Government and NHSX to determine what kind of design specifications the system needs. It has to be based on science and what epidemiologists say about their needs. It is up to the Government to identify what those functions and needs really are. If they lead to a centralised system, the question the DPIA has to answer is why it is centralised.
My next question would be about how the privacy and security concerns are addressed. That is what a DPIA is: it is about the mitigation of concerns. However, in no way does my blog or my expectation document say that a centralised system is a no and that decentralisation is a yes. It is a spectrum.
The ICO convened OECD members and privacy authorities from around the world. We had 250 people on a Zoom call. It was fascinating to see the differences in approaches around the world. Many are centralised, in different ways, and many are decentralised. There is no one best approach. From a privacy and security perspective, it has to answer the question why and to identify the risks and how they are being mitigated.
Baroness Ludford: You said there is no one best approach, but your knowledge of the situation and the development of the app led you personally, and the ICO, to recommend a decentralised system. That goes back a little bit to the previous thread about whether you are more friend or critic.
You are the regulator; it is slightly worrying that, while you say you prefer a decentralised system, you sound a bit neutral between decentralised and centralised. That is slightly confusing.
Elizabeth Denham: Let me try it this way. We wrote an opinion after looking at the Google/Apple collaboration on the APIs. You will see that we put out a formal opinion on that; that is a decentralised system.
We said in that opinion that centralised systems can work, but they need to be able to demonstrate how the privacy and security concerns are addressed. I wrote that blog, that opinion and my expectations document before we had seen the detailed technical documentation and before we had seen the DPIA from NHSX.
As I say, if I start from a blank sheet of paper, I am a privacy and security expert. That is where I will start. The functionality of the app is up to the Government to decide, based on the evidence they have and the need in our communities. It is not for me to decide; it is for me to advise on how to mitigate some of these potential risks.
Matthew Gould: Would you like me to come in here to explain the choice that we have made?
Chair: Yes, please do.
Matthew Gould: First, if privacy were the only thing that we were optimising for, a decentralised approach could well be the default choice. But, actually, we are balancing a number of things. We are balancing privacy with the need for the public health authorities to get insight into what symptoms subsequently lead to people testing positive, for example, which kinds of contact are riskier, and what changes occur in the nature of contact between, say, three days and one day before symptoms develop.
Even on the basis of the system that I explained, where you are not giving out personal data it was our view that a centralised approach gave us the potential to collect some very important data giving serious insight into the virus, which will help us. In that context, we thought that an appropriate balance would be achieved in a system that provided both that potential for insight and, we believe, serious protections on the privacy front in the manner that I have described. As the Information Commissioner has said, it is really for us to work out where that balance is—to demonstrate that we have mitigations in place and have thought about the privacy side as well, as I genuinely believe we have.
I would make two further points. We are talking a lot to international partners. It is striking that, as the Information Commissioner said, there is a range of approaches, many taking a similar approach to ours.
Finally, a lot of this has come up in the context of the proposal put forward by Apple and Google and the technology that they have put on the table. We are working phenomenally closely with both companies. We are all dealing with a new technology and a new situation and trying very hard to work out the right approach.
We are not in competition. We are all trying to get this right. We are constantly reassessing which approach is the right one. If it becomes clear that the balance of advantage lies in a different approach, we will take that approach. We are not irredeemably wedded to one approach. If we need to shift, we will.
Chair: For me, the video froze at the point where you said, “If it becomes clear that a different approach …” Could you complete that sentence?
Matthew Gould: I apologise. If it becomes clear that a different approach is a better one and achieves the things that we need to achieve more effectively, we will change. We are not particularly wedded to a single approach. It is a very pragmatic decision about which approach is likely to get the results that we need.
Chair: What is the timeframe within which you can decide to go with one approach rather than another for locally held information? Once you have opted for one, presumably that is it.
Matthew Gould: I am not sure that is right. We will not lock ourselves in. If we want to take a different approach, we might have to do some heavy-duty engineering work to make that happen. But I want to provide some reassurance that just because we have started down one route does not mean that we are locked into it.
Chair: Thank you. I now go to Joanna Cherry for the next question.
Q19 Joanna Cherry: Thank you, Chair. Mr Gould, whose decision was it to follow a centralised rather than a decentralised approach?
Matthew Gould: The team made recommendations and those recommendations were taken by the oversight board, which I chair and then report to the Secretary of State. To emphasise the previous point, it is not necessarily a decision for all time. We will keep it under constant review and do our best to make sure that if we need to change, we will.
Joanna Cherry: We are a bit pressed for time today. Would it be possible for you to write to the Committee and tell us who is on the team that took that decision?
Matthew Gould: Of course. Ultimately, the oversight board is responsible for making recommendations like that.
Joanna Cherry: I noticed that in your evidence to the Science and Technology Committee last week you were asked whether GCHQ had been involved in the decision-making. You said that it had. Was it specifically GCHQ that wanted a centralised data-collection process?
Matthew Gould: No, and it is worth saying that the involvement has been through the National Cyber Security Centre, the national technical authority. We have been very glad to have its expertise, to make sure the system is as privacy-enhancing and security-protecting as it can be.
The advantages of a centralised approach are really about the public health advantages that I talked about earlier. It is the ability, without knowing who the individuals are, to see some of the patterns that will tell us important things about the virus.
If you have a centralised approach, it becomes more straightforward to hone your understanding and decision-making inside the app, which will allow you, for example, to make sure that symptoms become more accurate over time and you get a better understanding of when the most dangerous time in somebody’s development of symptoms is for them to be having proximity events. Over time, it will tell us whether, for example, five minutes at one metre away is rather more important than 15 minutes at two metres away. These are all epidemiological advantages that we believe our approach will allow us to exploit.
Joanna Cherry: I see that a number of other countries in Europe, including Germany, Switzerland and the Republic of Ireland, have gone for a decentralised app. In our previous evidence session we were told by Dr Veale that a centralised app one side of a border will not be interoperable with a decentralised app on the other side of the border. Is it not true that the UK’s decision to use a centralised app will cause problems for interoperability across Europe and particularly on the island of Ireland, where two different apps will be operating on either side of the notional land border?
Matthew Gould: Just to be clear, even in Europe it is not just us who are taking this approach; the French, for example, are taking a similar approach. We are worried about interoperability, so we have convened international partners to look at interoperability and to work out how we can make sure that it works best across borders. These things are never straightforward; to try to get these complex new systems on the new technology or to talk to one another will be no small task. The point is a good one, and we are trying to work through how it can best work.
Joanna Cherry: It will be a particular problem on the island of Ireland, will it not?
Matthew Gould: It raises a further question about interoperability that we will have to work through.
Q20 Joanna Cherry: May I ask you a couple of questions about the data storage, which individual members of the public will be interested in? Once somebody decides to upload their diagnosis, what happens to their data once they notify the app that they have been diagnosed with Covid-19?
Matthew Gould: The data that they upload, which is a set of matching pairs of randomised IDs—to be clear, we are not talking about personal data but about pseudonymous data—will be stored securely, and it will allow us to hone the alerts that are at the heart of the system.
Joanna Cherry: Will it be possible for a person to be identified by name as a result of the data sent to the central system?
Matthew Gould: It should not be, because no personal details are attached and the data is held securely. People can use this with confidence that they will not be identified personally.
Joanna Cherry: Why do you need the first half of the postcode, as mentioned earlier?
Matthew Gould: We chose that very carefully. On the one hand, it allows us to know, for example, when there is a growing issue of proximity events and a potential spread of Covid in particular areas. It is broad-brush enough to know, for example, that a particular hospital there will need to prepare itself for a potential upsurge in local cases. But it is also broad-brush enough to make sure that there is no danger of it identifying individual people.
Joanna Cherry: Once someone’s data has been sent to the centralised collection area, can that person request that their data is deleted?
Matthew Gould: No. The data can be deleted as long it is on your own device. Once it is uploaded, it becomes enmeshed in wider data, and the technical difficulties of deleting it at that point become tricky. It is also worth saying that, at the end of the crisis, all the data will either be deleted or fully anonymised in line with the law, so that it can be used for research purposes.
Joanna Cherry: Will that assurance that that data will be deleted after a certain amount of time be written into law? Have you discussed that with the board or the Government?
Matthew Gould: It is a commitment that we are making.
Joanna Cherry: What legal guarantees will people have that that commitment will be honoured?
Matthew Gould: One legal guarantee is the basis under which we have been doing this in the first place, which is obviously in the context of a health emergency in which particular rules apply. I defer to Elizabeth on the precise details of it under law. However, once the health emergency has finished, the basis for us having the data changes, so there should be a sufficient guarantee there.
Joanna Cherry: Okay.
Elizabeth Denham: Data protection law is flexible enough and has strong enough principles and provisions to cover all these aspects. The issues of obsolete data, the deletion of data, and turning any identifiable data into anonymous and deidentified data before it is used for research are all covered by the Data Protection Act 2018.
Joanna Cherry: But it is correct to say, is it not, Ms Denham, that other rights than just privacy may require protection here?
Elizabeth Denham: That is correct. Some pieces of law in this area intersect, such as employment law, human rights law and privacy law. However, if we are talking specifically about the data and whether or not it needs to be deidentified to be used for research, all issues that are specifically about data are dealt with in the UK’s data protection framework of law, including the GDPR and the Data Protection Act 2018.
Joanna Cherry: Mr Gould, I have a quick couple of questions about data storage. What about the data relating to a person who receives a notification that they have been in contact with somebody who has been diagnosed with Covid-19? How is any data related to that person stored?
Matthew Gould: In the same way. It is a fair question, and perhaps I might write to the Committee to give more detail about it.
Joanna Cherry: Finally, will it be possible for anyone to use the data generated to trace the movements of an identified individual?
Matthew Gould: No, because we are not collecting location data. The app does not know who you are, who the people you are seeing are, or where you are, so trying to use it to know where an individual is will not work.
Joanna Cherry: But it knows the first part of your postcode.
Q21 Chair: May I butt in with a question arising out of that? My mobile phone company knows who I am—my device is identified with me—so how can it suddenly be not known?
Matthew Gould: Because we are not taking the identifier of your phone. We are taking the make and model, which we need to know because different phones operate in different ways, so it is absolutely germane to the way Bluetooth operates. However, we are not taking your personal identifier from your phone, so your phone company will know who you are, but the app sitting on the phone does not.
Chair: At that point, I will go back to Joanna.
Joanna Cherry: I have covered all the points I want to cover at this stage, so we can go on to the next question.
Chair: Thank you. We turn to Lord Dubs.
Q22 Lord Dubs: Who will have access to the data? You mentioned the NHS, but of course the NHS is a large organisation. Which parts of the NHS will have access to data, and what about the Government as a whole? Will Apple and Google have any access, assuming that we have a centralised system, and what about the police, who for certain crimes have access to the phone of a complainant?
Matthew Gould: We have said clearly that the data will be used only for health, public health and associated research purposes. It will not be used for law enforcement. I cannot give you a definitive list of exactly who would have access to the data, but we will have proper procedures in place consistent with law that will make sure that only those who have an appropriate health or public health reason for seeing the data do so, and under very clear conditions and criteria.
Lord Dubs: So Apple and Google would not come into that.
Matthew Gould: No. I cannot see a scenario in which Apple and Google would have access to that data.
Q23 Lord Dubs: I think that you have partly answered my next question. Assuming we have a centralised system, will Apple and Google play any part in this process?
Matthew Gould: They will, because they run the two main app stores through which people will download the app. They provide a large number of the smartphones and other devices that people use. Whether we go for the model that we have chosen for now, which is the centralised approach, or whether we change course, we will continue to work closely with them on the technology. That is not to say that we will share data with them, but it is absolutely right that we should talk to them about how we make sure the process works best. Given that we are sitting to a considerable degree on platforms that they have created, we should think together about how we solve this new and quite complex technological as well as medical problem.
Chair: Mr Gould, you said that only people with an appropriate public health reason will have access to the data. What if an employer wanted such access, the public health reason being to protect their other employees?
Matthew Gould: That is a very fair question; it touches on issues of law that I think I will need to consult on and perhaps write to you about. I can tell you what I think the answer is, but I think it best that I get an expert opinion and come back to you.
Chair: We know that the police ask complainants in rape cases for their mobile phones to check texts that might have gone between them and the alleged rapist, and they go through all the material on the mobile phone. What would happen in such a situation? Would they not see the notifications that had come from this system?
Matthew Gould: The notifications do not say whom you saw. They do not give any identity. If you get a notification that you have had a proximity event with somebody, it sets out only that you have had such an event; it does not say with whom, on what day or in what place. The information is still privacy enhancing.
Q24 Chair: Okay. Thank you. We go to Lord Trimble. Lord Trimble, are you there to ask your question? I will ask it as he seems to be offline at the moment.
When a person receives a notification that they have been in contact with somebody who has been diagnosed with Covid and it is suggested they self-isolate, will that be voluntary self-isolation, or will any enforcement be involved? Will any authority be notified in respect of the person receiving such a notification, or does it just go to them and depend on their good will?
Matthew Gould: As I have said, the system works on the basis that we do not know who the user is—the app does not know who the user is. If it sends out an alert saying, for example, “Somebody you have been in touch with has subsequently tested positive for Covid-19 and you should isolate”, that goes to a randomised ID. We do not know who it is. Precisely for that reason, the system relies on voluntary compliance with that advice.
Over the last couple of months, we have seen a huge sacrifice by the public to make sure that we can save lives, protect the NHS and do the right thing. It is our hope and belief that such determination to help protect the country, save lives and stop the spread of the virus will continue to power people downloading the app and, as appropriate, following the advice it gives.
Chair: I see that it is now five to four and we must let you go to Downing St, Mr Gould. I thank you very much for being prepared to answer our questions. Thank you in advance for agreeing to write to us on the questions you wanted to reflect further on before you gave an answer. Thank you, too, for your important work in trying to get us to a situation where the lockdown can be eased safely.
We have one final question to the Information Commissioner from Joanna Cherry.
Q25 Joanna Cherry: Commissioner, do you have an expectation of the role you will play when the contact tracing app is rolled out? We have touched on this already. I am interested in the provision of oversight and review of how the app is working in relation to its compliance with individual rights.
You have made the point already that from time to time you are asked to comment on matters relating, for example, to biometrics. Of course, there is also a separate Biometrics Commissioner. We heard evidence from legal experts earlier in this session today that it would be of benefit in relation to transparency and in dealing with the public to join in with this experiment, if you like; to have oversight by an independent commissioner; and possibly to set up a tribunal to which people could make complaints if there were to be any abuses of the system. Do you agree with me and them that such independent oversight would be desirable?
Elizabeth Denham: I know that there is already independent oversight of these issues. The Biometrics Commissioner, to take one example, has no powers of investigation and can only make recommendations. The same goes for the Surveillance Camera Commissioner. The only regulator in this space to do with data protection is the ICO. Our powers of investigation and audit are subject to oversight by a tribunal. We have the body set up to be able to take a complaint from the public, investigate and come to a conclusion. If there is disagreement or unhappiness with that conclusion, there is a tribunal that takes those complaints.
The advisory services that we provide do not mean that we cannot take complaints because, again, our advisory services are not signing off on an app. As I have said, we have seen some technical documents, but we have not yet seen the data protection impact assessment, which is critical for us to be able to see what legal bases will be relied on for the application. Michael Veale talked about this earlier. We have also issued opinions and best practices.
As for audit, as the app was rolled out and after it was decommissioned, we would look closely at exactly what data was collected and why, how much transparency there was about the programme and what additional applications or features were added.
Right now, we know that it is a proximity and notification system. It is not a system that is connected to immunity passports and it is not one that people are compelled to download. We all want the app to work not as a silver bullet but as a plank in our ability to get back to work. I have told the Government that they need to be transparent to the public by publishing the DPIA and the code, and by giving us as the expert regulator the documents so that we can be a critical friend. They also need to stick to the disclosed uses. The devil is in the detail in the disclosed uses which the public need to understand. But we want it to work, and I am confident that I have seen a serious focus on privacy and security
Joanna Cherry: It is not just the rights to privacy and security that may be engaged by this data collection, because there are other rights and protections under the Human Rights Act and the ECHR which may be engaged. One example is the right not to be discriminated against. Your office has closely focused on protecting the right to privacy and to security, but given that other rights will be engaged, do you not see that there is an argument to have oversight that focuses not only on privacy but on other issues of human rights? Do you see my argument?
Elizabeth Denham: I can see that there are other areas of law and other types of oversight that would be necessary in order to think about discrimination in employment or discrimination of a vulnerable group. However, data protection looks at fairness, proportionality and transparency. Those principles are critical. The analysis of proportionality that goes into data protection is similar to the proportionality assessment and test under Article 8. There are some similarities between those two, and I can write to the Committee in more detail about that.
Joanna Cherry: Okay, but do you understand the argument that many members of the public are rightly concerned about the impact that downloading this app on to their phones and giving up their information to a state body might have not just on their privacy but on their right not to be discriminated against if they are, for example, LGBT or they are migrants? Do you see the argument that it might increase public confidence and therefore the uptake and utility of this app if there was an oversight body that is separate from yours that was focused not primarily on privacy and security but on the protection of all rights under the European Convention on Human Rights?
Elizabeth Denham: Yes, I can see a lot of ways in which we could increase the confidence of people who are concerned about these things. That is why it is so important that the Government are transparent about what data is being used, how it is used and why it is used. They have to make sure that the app is truly voluntary, and they must stick to the disclosed uses of it.
They must also minimise what data is collected so that it gathers only the information that is absolutely needed. That is why we got into the difference of using only the first three digits of the postcode as opposed to the entire postcode, because you will understand that that would be identifiable information. It needs to be truly voluntary, because otherwise I agree that the public will be spooked when deciding to download the app. However, we all want the app to work.
Joanna Cherry: I agree, and I would like to see the app work as part of a larger strategy. However, it is my duty as a parliamentarian to try to put people’s fears about it to rest by addressing their right to protections. If we had independent oversight that was underwritten by a piece of legislation governing the app, the Government would have to make a statement under the Human Rights Act that that legislation was compliant with it.
Surely that would send a big signal to people that all their rights, not just their right to privacy but to their right for example not to be discriminated against, had been taken into account in the roll-out of this app. They would have not just the Government’s assurance but a piece of legislation along with an independent and impartial commissioner like you but one covering a broader field to whom they could go if they had a legitimate grievance.
Elizabeth Denham: That is one for parliamentarians and government to look at. My focus right now is making sure that I do a fulsome job when it comes to data protection and security of the data.
Chair: Thank you. I will go to Dean Russell for the final question to the Information Commissioner.
Q26 Dean Russell: I have a couple of points of clarification. First, just so that I am 100% clear, as I understand it, on the data that the app will in effect be generating and collecting, apart from the first part of the postcode that is put in it will be completely anonymised in the sense that you will get no details about the individual apart from the fact that their phone has come into close proximity with another phone. Is that correct?
Elizabeth Denham: That is my understanding, but, again, we are waiting for the data protection impact assessment for a full analysis and we will also need to look how at the app works in the wild so that we can see how the collection is happening and whether that is synonymous data or anonymous data, which are meaningful terms. There is a lot of detail in our expectations document, which sets out best practices in the way that the app should work
Dean Russell: Thank you. That is my understanding from what I have heard today, so I hope that that is the case. My second question is related to that, but I think you may have just answered it. I understand that there are no plans for this app to work with other apps, so the data will not be interoperable or shared with other apps on an individual’s phone, rather that it will be completely siloed and work alone. Is that the case?
Elizabeth Denham: That is also my understanding from the technologist that we have been speaking to at NHSX. Again, however, having that key document, the data protection impact assessment, along with the requirement for NHSX to provide it to me and to the public, is a really important protection, especially when everything is happening at pace and we want the public to take up such an app in order to help with proximity and notification.
Dean Russell: Finally, do you have a sense of when that privacy notice will be shared?
Elizabeth Denham: The privacy notice and the DPIA will both need to be shared with us. I know that NHSX also plans to publish that, so that it can show the public that it is transparent and accountable for what it is doing. I think that is on the verge of happening, and we will all be interested in the results of the trial in the Isle of Wight and to see whether it is working in the way the developers intended.
Chair: Thank you very much indeed for giving evidence to us today. We thank you for your important role in data protection. You could quite fairly have said that Parliament has given you the responsibility to take on the advisory role and the enforcement role and to handle complaints, and you are discharging the responsibility that Parliament has given you.
The question now is whether, in the face of the big challenge posed by the importance of public perception, we think that the framework that I and other MPs were part of establishing some years ago is the right match for the current circumstances. I thank you again for your work and for giving evidence to the Committee.
Oral evidence: The Government’s response to Covid-19:
human rights implications