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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 15 May 2020 Related reading: Sharing COVID-19 data with government authorities: Guidance from DPAs

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Greetings from Brussels!

If recent media reports are accurate, there are several governments considering immunity passports as an option to deal with the COVID-19 pandemic that continues to confine and ravage our society and economy. If some governments were to have their way, we could soon see people who have recovered from COVID-19 carrying digital certificates or even wristbands, which would allow them to move about freely. And I am not talking about authoritarian regimes here either. Some of these countries are very close to home and include the likes of Germany, Italy and the U.K., to name a few.

The debate has spurred on over the last weeks, with digital immunity passports arguably replacing the favored pet peeve — contact tracing — to top the charts of innovative ideas being bandied about. The current thinking behind the so-called digital passports is that they would allow people who have recovered to signal their immunity and therefore return to work, enabling economies to reboot. Clearly, the absence of a vaccine is playing into the fever-pitched debate and with good reason. Judging by expert opinions — and there are many — a stable vaccine could be easily 12 to 18 months away, and the timeline doesn’t account for the production and distribution of an eventual vaccine. Factor in the ramifications of keeping the global economy effectively shutdown and stagnant, and you can understand why this could be considered as a real solution for governments.

Health experts warn it is an imperfect solution and fraught with its own risks. The scheme would depend on reliable antibody testing and, in turn, enough kits for large-scale testing, neither of which seems to be feasible any time soon. The science is weak presently, and there is no consensus across medical bodies how long someone can remain immune from the virus or even if they can become immune at all. We have all heard of limited reinfection cases, and the World Health Organization has stated there is “not enough evidence about the effectiveness of antibody-mediated immunity to guarantee the accuracy of an immunity passport.”

Yet here we are. Notably in Germany, the health minister confirmed that he would not entertain the idea any further until the German Ethics Council had decided whether such a scheme could respect citizen’s rights, including their privacy. In the U.K., Onfido, an ID verification firm, is in early-stage talks with the government. In short, the proposal would bind an immunity stamp to digital identity through a mobile app. ID verification would be achieved through facial-recognition technology, which would be processed at the entry points to work premises.

What of privacy? There are many questions being posed by privacy specialists. European Data Protection Supervisor Wojciech Wiewiórowski referred to the idea of immunity passports as extreme in a recent address to the French senate. The concern is two-fold if such measures are ineffective judging by the scientific, as well as practical evidence, attention to more worthy solutions may be overlooked. Furthermore, the threat of lingering peripheral surveillance is a constant privacy concern in which digital solutions are concerned, very much in the same vein that privacy advocates voiced over contact tracing solutions.

Ultimately, there is a trade-off to consider. The ICO and other EU regulatory voices have stressed that careful consideration should be given to shaping proportionate surveillance and enabling good AI practice to ensure privacy considerations are engineered into COVID-19 solutions. Finally, we must ask ourselves with a view to public interest: What level of sacrifice we are willing to make if it offers an avenue out of this pandemic crisis?

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