‘I’m right behind you’: Digital contact tracing under European law
| Author | Vera Lúcia Raposo |
| DOI | http://doi.org/10.1177/1023263X221116227 |
| Published date | 01 August 2022 |
| Date | 01 August 2022 |
| Subject Matter | Articles |
‘I’m right behind you’: Digital
contact tracing under European
law
Vera Lúcia Raposo
Abstract
The features of the coronavirus disease 2019 (COVID-19) pandemic demand a new form of con-
tact tracing performed by digital means: digital contact tracing. However, this mechanism raises
several issues in light of relevant European regulations, particularly in terms of personal data pro-
tection and privacy. The challenge is to have a digital contact tracing model that efficiently and
speedily alerts people to potential infection, so they can get tested and isolated as necessary,
but that also complies with European legal standards. This paper will address two main issues.
First, it will analyse digital contract tracing and its different features from the perspective of
data protection and privacy, seemingly the main concern in this domain. Secondly, the paper
will analyse the loopholes and benefits of digital contact tracing in the European context, focusing
on the tension between privacy, individual liberties and public health to address its legitimacy.
Keywords
COVID-19, digital contact tracing, General Data Protection Regulation, public health, health data
1. Introduction
On 11 March 2020, the World Health Organization (WHO) declared the coronavirus disease 2019
(COVID-19) a pandemic.
1
This highly contagious disease, caused by a new coronavirus, poses
various challenges for health authorities. First,
Faculty of Law, University of Coimbra, Coimbra, Portugal
Corresponding author:
Vera Lúcia Raposo, Faculty of Law, University of Coimbra, Pátio da Universidade, 3004-528 Coimbra, Portugal.
E-mail: vera@fd.uc.pt
1. World Health Organization, ‘WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19’,11
March 2020, www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-
briefing-on-covid-19—11-march-2020.
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(4) 434–450
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X221116227
maastrichtjournal.sagepub.com
[t]he virus can spread from an infected person’s mouth or nose in small liquid particles when they cough,
sneeze, speak, sing or breathe heavily. These liquid particles are of different sizes, ranging from larger
‘respiratory droplets’to smaller ‘aerosols’
2
Second, symptoms may appear some time after infection takes place,
3
allowing infected people
to pass the virus on without even knowing that they are infected.
4
Therefore, the best way to restrict
the progression of the virus is by avoiding close personal contact, especially with infected people
(although some infected people may be asymptomatic). As soon as someone has tested positive,
they should inform everyone with whom they have recently been in contact, allowing them to
swiftly seek a test and isolate if necessary. This can break the chain of infection.
5
The use of contact tracing to combat serious infectious diseases is not new. However, it has
usually been done manually through interviews with infected people to identify others with
whom they have been in contact. This method has some limitations, especially with infectious dis-
eases that can be transmitted in the pre-symptomatic stage.
6
Patients may not remember or be able to
identify everyone with whom they have been in contact, especially as some are likely to be complete
strangers (for example, people who took the same bus or visited the same shop).
7
Moreover, the
number of trained officials required to perform contact tracing for COVID-19 would be prohibi-
tively high given the increasing number of infected individuals.
8
Even with enough staff, the
process would simply be too slow to be efficient.
9
These obstacles can be surpassed using digital
contact tracing (DCT);
10
that is, contract tracing performed using digital tools.
11
2. World Health Organization, ‘Coronavirus Disease (COVID-19): How Is it Transmitted?’, 9 July 2020, www.who.int/
emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-how-is-covid-19-transmitted.
3. C. Ross, ‘Hospitals Turn to Remote Monitoring Tools to Free Up Beds for the Sickest Coronavirus Patients’,Stat
News, 25 March 2020, www.statnews.com/2020/03/25/coronavirus-hospitals-weigh-remote-patient-monitoring-tools/.
4. R. Li et al., ‘Substantial Undocumented Infection Facilitates the Rapid Dissemination of Novel Coronavirus (SARS-CoV2)’,
368 Science(2 020), p. 491 claim: ‘Nationwide [the authors refer to China] the number of infections during 1 0–23Janua ry was
16,829 (95% CI: 3797–30,271), with 86.2% (95% CI: 81.6–89.8%)originating from undocumented cases.’
5. M. Casey et al., ‘Pre-symptomatic Transmission of SARS-CoV-2 Infection: A Secondary Analysis Using Published
Data’, medRxiv 2020.05.08.20094870 (2020), https://doi.org/10.1101/2020.05.08.20094870; J. Hellewell et al.,
‘Feasibility of Controlling COVID-19 Outbreaks by Isolation of Cases and Contacts’,8The Lancet Global Health
(2020), p. E488.
6. Ferretti et al. state that about 40% to 50% of infections with the new coronavirus happen before the first symptoms appear,
Ferretti et al., ‘Quantifying SARS-CoV-2 Transmission Suggests Epidemic Control with Digital Contact Tracing’,368
Science (2020), https://doi.org10.1126/science.abb6936. See also S. Jacob and J. Lawarée, ‘The Adoption of Contact
Tracing Applications of COVID-19 by European Governments’,4Policy Design and Practice (2021), p. 44.
7. M.M. Mello and C.J. Wang, ‘Ethics and Governance for Digital Disease Surveillance’, 368 Science (2020), p.954.
8. Ibid., p. 954.
9. Ferretti et al., 368 Science (2020), p. 6.
10. The idea of contact tracing is not unknown in European law. See Article 3(a) of Decisionn. 1082/2013/EU of the
European Parliament and of the Council of 22 October 2013, on serious cross-border threats to health, and repealing
Decision n. 2119/98/EC Text with EEA relevance (the so-called Health Threats Decision), which provides a definition
of contact tracing as an operative concept in EU law: ‘“contact tracing”means measures implemented in order to trace
persons who have been exposed to a source of a serious cross-border threat to health, and who are in danger of devel-
oping or have developed a disease.’For details of this decision, see P. Dąbrowska-Kłosin
ska, ‘Tracing Individuals
under the EU Regime on Serious, Cross-border Health Threats: An Appraisal of the System of Personal Data
Protection’,8European Journal of Risk Regulation (2017), p. 700.
11. Ferretti et al., 368 Science (2020), p. 4; L. Du, V.L. Raposo and M. Wang, ‘Correction: COVID-19 Contact Tracing
Apps: A Technologic Tower of Babel and the Gap for International Pandemic Control’,8JMIR Mhealth and Uhealth
(2020), p. e23194; R. Rubin, ‘Building an “Army of Disease Detectives”to Trace COVID-19 Contacts’323 JAMA
Raposo 435
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