What contact tracing can mean in a democracy

Originally published at: https://www.politicallymath.in/what-contact-tracing-can-mean-in-a-democracy/

The recent discussion on contact tracing in the context of the COVID-19 epidemic is intertwined with surveillance technologies. These technologies can be cheaply scaled up and they can also be highly personalized, depending on what databases they can be linked to. Given its importance and rapid acceptance by authorities and Governments in India, there are several important questions that we must immediately ask: What should contact tracing mean to us? How should it be implemented in the Indian context? This requires guidelines as well as a legal framework which should be made public. What if a person chooses not to give some history? Can they be forced? To what extent? Where are these guidelines framed and where are the laws that guide them? Again, for instance, can the police forcibly go through their phone history or can authorities make the COVID 19 patient’s name public? What recourse do people have to this?

In
the interest of democratic freedoms, these technologies should not
shift the dynamics of power against the people.

Anyone
who has access to the information that contact tracing exercises
provide would have a lot of power. If the state, or any other power,
has unregulated access to that information, it can harm the
democratic fabric of society. There must be regulations that protect
the democratic fabric. These regulations should protect the right to
privacy, and prevent the use of the data that could lead to social
and communal disharmony.

To
this extent, it is important that the state develop protections of
the information collected along the lines of the laws that protect
other information that is collected for healthcare and census:

For
example, the Census Act of 1948 maintains that strict secrecy of
information collected for the census except for offences directly
connected with the census. Census records are also not open to
inspection. We feel that the state needs to be very careful when it
comes to information about people’s health and location, and ensure
that the data not be used against them in any way. The data on the
body should respect the right to privacy, and should only be used
with full consent.

While
the Supreme Court has declared that Indians now have a fundamental
right to privacy, it still is not clear what that will imply on the
ground. The Right to Privacy includes reasonable searches, but how
does it protect people when they are coerced into downloading apps on
their phone? Swiggy, Zomato, Grofers have already made downloading
the Arogya Setu app mandatory for their frontline workers, while
Amazon and Flipkart have recommended their workers to do the same.
When employment and use of public transport are conditioned on the
use of these technologies, can the use be treated as consensual?

We
should distinguish between local Community-level interventions, which
can be volunteer-driven, and surveillance initiatives by the state.
Recent surveillance and documentation policies of the Indian state
haven’t sparked much confidence in people, particularly from
oppressed social, ethnic and religious backgrounds. We are living in
the times when a large section of Indians – particularly those from
the working classes without proper documents, and those from the
Muslim communities – are under real threats of losing citizenship en
masse. In such times, any effort from the state in terms of ‘health
surveillance’ is bound to meet with scepticism and thus even
non-compliance. Mass health disciplining is not a legal or policing
question, it is a question of mass education, social confidence, and
required social, economic and health infrastructure/security that
would allow people to follow the rules that are required in such
times.

It
is also important to realize that the policies that are pursued
during the lockdown will interact with other social and political
processes. We have a concern about how people are being stigmatized
based on the class and community. The ruthless communalization of the
epidemic – as seen after the Delhi Tablighi Jamaat demonization – has
led to large sections of people losing complete faith in
Government-run quarantine facilities or relief centres. This is a
clear continuation of the existing political social climate of
stigmatizing and demonizing these communities. We have come across
several accounts over the last few days where people have said if it
comes to a choice between catching COVID19, and getting lynched
because of suspicion of someone catching the disease, they would
rather prefer the disease itself and succumb to it in silence if
required. We are also seeing regular incidences of people belonging
to the working classes, mostly members of socially oppressed
communities – such as in the case of the returning workers in UP –
who are being treated as insects by the administration, under the
excuse of ‘countering Corona’. There has been a frantic rise in
racist attacks on people with Mongoloid features, who have been
branded as cariers of the disease. Social distancing can reproduce
the casteist discourse of untouchability.

The
role and danger of technologies for contact-tracing:

Around
the world, technology-oriented solutions, like the use of
downloadable apps, are being developed and adopted, both by central
and local governments. . These technologies are scalable and easily
to deploy, which encourages their use. However, the scale of their
use also introduces many potential misuses, which can magnify the
risks of misuse several-fold. To highlight a few:

  1. Aggregation
    of data at the centre:
     Several
    apps that are currently deployed, including Arogya Sethu, are
    centralised. All the data collected for contact tracing is sent to
    and stored in a central server. This increases the dangers of
    misuse. If contacts of a person infected with COVID-19 have to be
    traced, why should this information go beyond the local
    municipality? Why should it be in the hands of the district
    government, let alone a state or central government? There are many
    effective models of data use in decentralised systems. Such systems
    can guarantee that the information stays local. In a country like
    India, there is a need for us to demand that contact tracing
    information must stay at the most local possible level 
  2. Patient
    confidentiality
    : Data that is
    used for the sake of protecting people’s health must be treated
    as private. One guideline we can recommend , is that the information
    obtained from an app must not exceed the information that can be
    obtained from the patient by an examination at a hospital by
    healthcare workers. Given that contact tracing apps are meant to
    replace physical contact tracing, this seems a reasonable guideline.
  3. Cross-linking
    data
    : Another concern
    regarding data aggregation is the linking of data from different
    apps or databases. For instance, contact tracing is often conflated
    with quarantine adherence. If people volunteer for having their
    information added to contact-tracing apps, there must be guidelines
    to ensure that this data cannot be later used to enable containment
    in quarantine. The risk for technologies with inter-related
    objectives can lead to gross violations of privacy and could lead to
    a surveillance state. Incorporating real-time location already
    enables the surveillance state. There might be some short term
    benefits, but the inability to get reasoned consent and the risks of
    such a project is enormous. Many governments deploy data-collecting
    apps while explicitly guaranteeing that the data collected will only
    be for one purpose. However, in India, the Arogya-sethu does not
    have any guarantees. Rather the Arogya-sethu app says that the data
    “may be retrieved for necessary medical and administrative
    intervention” and the exact definitions are not clear. It is
    also unclear which Government departments will have access to this
    information. Such guidelines must be codified and laws passed at the
    earliest to prevent misuse and their use for surveillance.
  4. The
    path we are on
    : The sudden and
    opaque use of surveillance technology in the time of a crisis can
    set a bad precedent. A public crisis can be a dangerous time to pass
    laws, as passions run high and critical debate is difficult. Given
    the use of the technology as a tool of public health, we must make
    sure that we review the democratic potentials of such technology and
    not be another weapon for the surveillance state or by private
    players. We may not be able to turn back the clock on what these
    technologies will do, but when the crisis recedes, it is critical
    that technologies, that have become crucial in controlling the
    spread of the disease, be opened up to the democratic process that
    respects the rights of all people. New diseases and outbreaks may
    come in the future, and they cannot be a justification for an
    intrusive state.
  5. Growth
    of a surveillance state and its celebration:
     Policing
    technologies and excessive brutality have become spectacles in the
    time of crisis. Use of force by the police to ‘protect’ the people
    is not new, but this is perhaps the first time police have been
    employing modern technology as a response to a pandemic. Recently, a
    woman from Mumbai was secretly whisked away to a quarantine facility
    by municipality officials with the aid of police using the
    centralized surveillance mechanisms. This use of technology is not
    new, but the indiscriminate use of these tools is worrying. For
    example, drones, often commissioned through private volunteers, are
    being employed to monitor and scare people. This is showcased as an
    innovation, but it only showcases the dominance of the state over
    the people. In addition to there being little or no public
    deliberation on such measures and a clear lack of proper privacy
    protection measures, there is also the danger of these measures
    becoming normal in the post-lockdown world. In some areas, police
    have made troll videos based on the footage from drones, which have
    circulated on social media. These spectacles are circulated to
    gather public cheer. In the comments section of these videos,
    concerns are buried under the cacophony of joyous adulations.
    Sometimes, there are suggestions to employ the service of drones
    post lockdown to keep social miscreants in check. This can normalize
    a police state after the crisis.

What
do we want in a time like this?

At
times like this, we think of the state as a regulator of public
activity. The amount of power the state has been able to exercise in
this time of crisis is unprecedented. This power might be part of an
elaborate social contract, so the people need to ask, what is the
state doing to earn this power?

  • To
    prevent a huge toll of life, it is important that the state
    actively promotes a
    universally accessible public healthcare system
    .
    Surveillance, without testing and
    protection for those who have tested positive, is not enough!
  • The
    state also needs to take a
    long term view on healthcare
    .
    The policies of the state have not ensured proper access to
    healthcare across the different classes of society. Even this year,
    with the crisis oncoming, the state did not take any measures to
    improve facilities or access. The most successful delivery systems
    of healthcare have been locally managed systems. Given the sagging
    role of the centre in developing healthcare systems, we must ask,
    can we use this as an opportunity to develop
    community-level healthcare systems
    ?
  • The
    crisis has also demonstrated the inability of the private healthcare
    sector to respond to these global challenges which affect all
    people. Thus, we must stress the need to strengthen our public
    health-care architectures and systems.
  • The
    main tool of the state has been the nation-wide lockdown. This has
    led to hardship across the country and has disproportionately
    hurt people who are poor, depend on their daily income, or who have
    migrated
    . The state’s
    response to those suffering has been underwhelming, to say the
    least. One must ask the question of why technology has not been
    deployed to address this question? Why is there no app which allows
    the citizen to easily access the information regarding food
    distribution services in her/his area? The phone helplines set-up
    for PDS distribution are still using age-old and outdated
    technologies, while brand new technological advancements are quickly
    deployed for central surveillance. Why is there no easy way for
    every worker to complain regarding non-payment of salary during the
    epidemic, despite Govt guidelines to the contrary?
  • There
    needs to be a promise by the state to regulate its own surveillance.
    Without the legal backing and privacy laws to govern contact
    tracing, both physical and digital, the trust of people in this will
    suffer. This is counter-productive as it would lead people to prefer
    to hide the disease than have it traced/tested. Having more
    trustable procedure with a guarantee of safety and protection is
    essential to achieve even the stated goal of tracing the contacts
    and using this information to curtail the spread of the pandemic.
  • The
    other side of surveillance is transparency.
    It is not clear to the people what the long term plan of the state
    is regarding the effects of this pandemic. There have been no
    deliberations, and control has quickly moved away from local spaces
    to the centre.