June 2, 2020

June 01, 2020

Subscribe to Latest Legal News and Analysis

May 30, 2020

Subscribe to Latest Legal News and Analysis

Red-Flagged by the Black Box: Nationalizing Apps to Fight COVID-19

Many of us have not read about China’s near-nationalization of payment and chat apps to fight the spread of COVID-19.  Widely-reported but little noticed, China has required citizens to use software on the chat and payment apps WeChat and Alipay that dictates whether they should be quarantined or allowed into subways, malls and other public spaces.

China’s state media calls the feature the Alipay Health Code. It assigns people a green, yellow or red rating accessible via a QR code on the Alipay app at subways and office buildings. People with a green status can be out in public, yellow status results in a request to stay at home for seven days and red status results in a two-week quarantine.

You don’t need me to tell you the myriad of privacy issues this state recruitment of ubiquitous apps presents. The New York Times reports its belief that health and location information from these programs is being shared with Chinese law enforcement in real time.  And it is unclear what a citizen needs to do to get her status changed back to green once the threat has passed.

My colleague Ted Claypoole recently reported in this space about a Dutch court tossing out a welfare fraud detection scheme because its AI component wasn’t transparent and thus violated European law against profiling.  As Ted wrote, the court had to weigh “the functional purpose of such a system against its impact on the human rights protected by the EU Charter.”  The court decided that protection of human rights trumped the obvious benefit of preventing fraud.

We know that such nice balancing is beside the point in an authoritarian country like China. But, would a court in a Western democracy come to similar conclusion in the face of rapidly-spreading pandemic?  I think the jury is out.  We have come to accept many restrictions on our liberty in the name of protecting the most vulnerable members of our society.  At least, many of us have.  And state and local governments are perfectly willing to tighten the screws if people don’t pay heed.  Governor Cuomo of New York spoke of turning a public “density valve” tighter and tighter: “We’re going to take it to the ultimate step, which is we’re going to close the valve,” Cuomo said. “Because the rate of increase in the number of cases portends a total overwhelming of our hospital system.” When spring breakers in Florida went AWOL on YOLO grounds, state and local officials kicked them off the beaches.

How short a step is it from ordering all bars and restaurants to close and shuttering all public schools to requiring mandatory app updates to protect public health?  I’d say it’s about a New York minute away.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

TRENDING LEGAL ANALYSIS


About this Author

Philip Gura, Womble Dickinson Law Firm, Atlanta, Cybersecurity Law Attorney
Of Counsel

Phil Gura has more than 30 years of experience helping companies manage privacy, data security, governance and regulatory compliance challenges. For the past 15 years, he has served as the Chief Legal Officer of major corporations, including Merchant Customer Exchange LLC (MCX), RaceTrac Petroleum Inc. and LaRoche Industries, Inc. His in-house experience includes managing and directing corporate governance, regulatory/compliance, privacy/ data security and intellectual property efforts.

Phil most recently served as Chief Legal Officer of Sionic...

404-888-7480