Opinion: Right to privacy suffers collateral damage in fight against Covid-19

By Morgan Apollo Muhindo

The world continues battling the outbreak of COVID19 pandemic, governments and decision makers continue taking unprecedented and stringent measures. Like the adage, to have an omelet a few eggs must be broken, it is a price we must pay to end the pandemic.

To remain socially and economically sound, business and governments have embraced technological tools to fight the pandemic. The National Information technology Authority-Uganda has created over seven innovation tools, ranging from USSD codes to a Tracing App- TraceUg.

Like tools have emerged all over the worlds, and there is unanimity that big data is key for their efficiency and consequently the fight against COVID19, How far these tools can be trusted with people’s data is the elephant in the room.

The unchecked collection of personal information is in no doubt palpable. Protection of personal information is a limb of the right to privacy, the latter without restricting further definitions, is understood as a right to be free from intrusion or interference by others.

The right to privacy is not absolute; it has to be considered in relation to its utility in society and balanced against other fundamental rights and in accordance with the principle of proportionality. Legality of processing personal data – even special data like data about health – can be achieved where the processing is necessary for reasons of public interest which should be proportionate to the aim pursued.

It can be said that any personal data collected under the dictates of law on privacy and data protection, can be justifiable, worries roll in through the canoes of uncertainty on retention and integrity of data collectors and processors to only use this data for the intended and justifiable reason like fighting a pandemic that is a public health threat.

Contact tracing is a long standing public health technique that works to identify everyone whom a sick person may have exposed, helping them identify their risks and take appropriate action. It’s labor intensive, and often slow compared to fast moving pathogen like Corona Virus. The alternative is the use of technology assisted contact tracing Apps which are problematic, they collect sensitive information without a proper legal regime and policy framework on data storage and retention among others.

For this, Human rights defenders have successfully litigated against tracing system for being intrusive and a threat to civil rights and civil liberties. The Supreme Court of Israel faulted the employment of the tools without a proper legal framework. The American Centre for Civil Liberties Union on 16^th April 2020, came up with basic principles for appraising technology assisted contact tracing (TACT), which I believe should shape the debate on the like tools.

Every tool we are using for ordering, food, holding meetings and conferences, finding a suitor or talking to a doctor knows you more than your pastor. That is why a case for data protection and privacy has to be made.

Data protection is a Wall of Ston protecting the inner sanctum of a person instrumentally valued for one’s autonomous identity. In return it is a protection of human dignity.

Privacy certifies that a human being can lead a life of dignity by fortifying the inner recesses of their personality from unwanted intrusions. This right is a necessary condition precedent to the enjoyment of any of the guaranteed rights under the international, regional and domestic legal instruments.

Privacy has both positive and negative content, the latter restrains the State from committing an incursion upon the life and personal liberty of a citizen. Its positive content imposes an onus on the State to take all necessary measures to protect the privacy of the individual.

Any intrusion on this sacred right must only be impinged with a just, fair and reasonable law and after meeting the well settled test of proportionality. Therefore, any tool or system that is developed must be scrutinized for the protection of rights of data subject.

Morgan Apollo Muhindo is a human rights lawyer at Kiiza & Mugisha Advocates.

Founder of Enset Tech Limited.

Email: morganapollo22@gmail.com