COMMENT: It is imperative to restore public trust and confidence in using TraceTogether (TT).
Eugene K B Tan, Associate Professor of Law at the Singapore Management University and a former Nominated Member of Parliament, thinks that TraceTogether data should be exempt from the CPC.
- The authorities previously assured citizens that the TT data "will only be used for contact tracing", but subsequently indicated that the data may be used for criminal investigations.
- TT is the vital tool in our fight against the pandemic as it helps with contact tracing. It is in the government's interest to ensure optimal usage of TT.
- Some are now feeling that the government has "betrayed" their trust, so public confidence in using TraceTogether must be restored.
By Eugene K B Tan
On Monday (January 4), in a short oral reply to a parliamentary question, the Government indicated that the Covid-19 TraceTogether (TT) data may be used for criminal investigations. Under the Criminal Procedure Code (CPC), the Singapore Police Force is empowered to obtain any data, including TT data, for criminal investigations.
On Tuesday (Jan 5), Home Affairs and Law Minister K Shanmugum clarified in Parliament that TT data is only be mined in an investigation of a “serious crime”.
On Friday (Jan 9) late evening, the Government stated that legislation will be urgently passed in Parliament in February to formalise the assurances given in Parliament that TT data, where needed, will only be used to investigate specified serious crimes such as murder, terrorism, and drug trafficking carrying the capital sentence.
In a Facebook post on Jan 9, Dr Vivian Balakrishnan, the Minister-in-charge of the Government’s Smart Nation initiative and who plays a key role in the development of TT, “acknowledged making a mistake” in his characterising the use of TT data last year.
These moves on Friday are the government’s attempts to assuage public unhappiness and allay the legitimate concerns of many Singaporeans who had been given regular and consistent assurances throughout last year that TT data “will only be used for contact tracing”.
People feeling "betrayed"
In all these assurances, never once was the CPC ever mentioned, and neither have the authorities ever felt the need to draw Singaporeans’ attention to the CPC’s expansive investigative reach, including TT data, even as it provided information on the safeguards such as encryption, automatic purging of data after 25 days, and public sector data protection rules.
As such, it is not a surprise that words such as “betrayed” was used online in the past few days to criticise the Government’s revelation earlier this week that TT data can be used for non-contact tracing and has, in fact, been used in a murder investigation.
Indeed, the longstanding and apparent unequivocal assurance that TT data “will only be used for contact tracing” goes as far back as June 2020 when TT was first rolled out, and reiterated on multiple occasions by several Ministers.
The Government had even responded to public concerns on privacy relating to the TT app on mobile phones that it decided to develop the TT token, which has enjoyed a strong take-up rate resulting in supply not meeting the demand for it.
Trust is a necessity in the Covid-19 battle
This revelation that TT data can be used for non-contact tracing purpose comes as the battle against Covid-19 enters a critical phase. Many countries are experiencing a frightening resurgence of cases, the coronavirus is also mutating, Singapore is opening up, and vaccinations have commenced here.
Trust is an absolute necessity in this existential battle against Covid-19. Singaporeans must be able to have trust and confidence that the Government is doing the right thing and that the measures it implements are scientifically-validated and fit for purpose.
The role of prompt and accurate contact tracing is even more critical in the rapidly-evolving challenge of keeping COVID-19 at bay. TT is the vital tool in our fight against the pandemic that has wrecked havoc with its tragic toll of deaths, severe health issues, disrupted our lives and affected jobs, livelihoods, and the future.
Proposed law should have robust safeguards
It remains to be seen what safeguards the proposed law will provide. We know it will specify that personal data collected through TT can only be used for the specific purpose of contact tracing, “except where there is a clear and pressing need to use that data for criminal investigation of serious offences” and it will list the seven categories of serious offences.
This is an important first step in rebuilding the public’s trust and confidence in the use of TT. But it is not the silver bullet. There must be transparency and accountability when TT data is used for non-contact tracing purposes even for investigations of serious crimes.
The proposed law should provide robust safeguards such as the need for Police to show that the use of TT data is a measure of last resort and that there is a reasonable case that the data extracted will be relevant and crucial to the investigation.
There should also be oversight provided by the courts whereby its consent is needed before TT data can be accessed for non-contact tracing purposes. The need to show how the data is relevant, material, and essential to investigation must be required thresholds.
The importance of TraceTogether for contact tracing
Let’s be clear: TT was conceived, developed, and applied for contact tracing. To now burden it with the incidental role as an investigative tool, even for serious crimes, may potentially emasculate TT’s centrality in keeping Singapore and people in Singapore safe.
We cannot afford to not have an optimal number of people in Singapore not using TT. TT becomes more effective when more people are using it.
For example, in September 2020, 118,000 close contacts of persons infected with Covid-19 were identified, of which 4,500 subsequently tested positive, yielding a detection rate of 3.8 percent.
More importantly, this contact tracing was more effective and faster than what would be achieved by manual contact tracing. This is where technology can powerfully augment contact tracing.
While the Government can make the use of TT mandatory, it would not be able to enforce its use beyond the point of entry and exit. This means that people have to be self-motivated and voluntarily use TT at all times when they leave their homes.
Worryingly, the furore this week and its effect on public perception of TT is unnecessary and, worse, an untimely distraction from the urgent core mission at hand to fighting Covid-19.
Don’t get me wrong. Law and order is important but at this stage in the battle against Covid-19 we must focus our efforts, energies, and enthusiasm on fighting Covid-19, rather than debate whether TT should be used to fight serious crimes. That is a debate for another day when we have overcome the pandemic.
What should the Government do now?
Even with the commitment to pass legislation on the use of TT data, it now needs to ensure that TT does not become a casualty of the lack of trust and confidence among the population. Otherwise, this will certainly severely hamper our efforts in combating Covid-19.
It urgently needs to ensure optimal usage of TT and to do this it must always put users at the centre of TT.
I would rather the Government exempt all TT data from the CPC so that people will use TT without any undue concern that their privacy is being compromised or that the data could be used for other purposes.
Even specifying that TT data will be used only for specified serious crimes is not sufficient.
There will remain the nagging suspicion that they may be other undisclosed caveats (as the CPC’s applicability once was) or that the list of specified crimes is one too many or that it could be expanded in future – all in the name of law and order and justice. This is a case of being “once bitten, twice shy”.
How useful really is TT data for crime busting?
In the quest for law and order, the authorities must take a circumspect approach to the utility of TT data as evidence, especially its admissibility in court. Thus far, the Government has not yet shown that the utility is so significant to that extent that law and order will be undermined if TT data is excluded.
How did the police fight serious crimes in the pre-Covid time? The importance of maintaining law and order is not in doubt but how we go about it matters.
For instance, should the argument be made, post-pandemic, that since contract tracing data is useful for fighting crime that it be made mandatory to use a crime-fighting tracing app?
We must bear in mind what TT is for, and what is the more critical, life-and-death task at hand. TT was never designed for crime fighting and it should not have this role foisted on it because it undercuts contract-tracing efforts.
Just because TT appears to be conveniently helpful to crime busters does not mean that it should be subjected to mission creep. Are the existing means, including surveillance and data woefully inadequate to fight crime? Is it worth undermining public trust for that marginal boost to the police’s crime fighting capabilities?
The trust and confidence needs to be repaired
It is imperative for the Government to stop the bleeding of trust and confidence that TT has sinister designs or surreptitious applications even as it seeks to pass legislation to safeguard TT data.
Covid-19 will pass in the fullness of time but other pandemics are likely. There will be the continuing need for contact tracing capabilities and tools when another pandemic descends upon us. Hence, the need for people to have full trust and confidence in the government’s assurances must not be taken for granted.
The Government must restore public confidence and re-focus needed attention on our coming together to emerge stronger as one people in this pandemic.
That starts with our having confidence in using TT and trust that the Government is getting its priorities right in this extraordinary time.
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Top photo via Vivian Balakrishnan, gov.sg