China May Have Retained Data From COVID-19 App

Theresa Erna Jürgenssen

East Asia Human Rights Researcher

Global Human Rights Defence

As part of its zero-Covid policy Chinese citizens were being tracked with mandatory Covid-tracking apps. On December 13, China finally discontinued the use of its “Health Code” smartphone app (Zifei et al, 2022). Nevertheless, because the algorithm of the app has never been disclosed it is completely unclear what is now happening with the huge amounts of data the government has traced for a significant amount of time (Zifei et al, 2022). It may be possible for the government to continue to have access to it and to use it to manage and monitor its society (Zifei et al, 2022). The government has already been using big data in order to track people’s shopping habits and, thus, pre-empting outbreaks of COVID-19; it is likely that the government will track people’s movements using data from mobile phone signals despite its discontinuation of the app (Zifei et al, 2022).

Covid tracing apps have been used by several governments worldwide and generally pose an ethical and legal challenge. These apps, especially when tracing someone's location, are an infringement on people’s right to privacy. Article 17 of the International Covenant on Civil and Political Rights (ICCPR)  [1] and Article 12 of the Universal Declaration of Human Rights [2] both state that “no one shall be subjected to arbitrary or unlawful interference with his privacy”. Even though China has not ratified the ICCPR it has signed it (OHCHR) and, thereby, expressed its intent to commit to the protection of the human rights contained therein. While the apps are a clear infringement on someone, the question is whether certain uses, and especially the use by China, is an arbitrary interference. To that end academics have elaborated upon several criteria that could help evaluate the arbitrariness of these apps. Generally, the apps should be necessary for a legitimate purpose, which should be the protection of public health in this case; the negative impact must be proportionate in relation to the gravity of the situation, they must be scientifically sound, and implemented in a temporary fashion (Morley, 2020). It should also be used for a limited purpose, be voluntary, be processed anonymously, fairly and lawfully, and not be kept any longer than necessary (Morley, 2020;Hathaway et al. 2021). These principles could be used in order to assess whether specific Covid tracing apps are violating human rights. If it uses the data for any purpose other than preventing the spread of the virus, however, this would be a clear violation of the right to privacy.

Notes:

[1] China has not ratified the International Covenant on Civil and Political Rights.

[2] The Universal Declaration of Human Rights is a universal but non-legally binding instrument and not a binding treaty. China has, however, signed the Declaration (OHCHR) and, thus, expressed an intent to be committed to the rights protected therein. 

Sources and further reading:

Hathaway, O.A., Lim, P.J., Phillips-Robins, A., Stevens, M. (2021). The COVID-19 Pandemic and International Law. Cornell International Law Journal, Vol. 54, pp. 150-244. 

Morley, J., Cowls, J., Taddeo, M., Floridi, L. (2020, May 01). Ethical Guidelines for SARS-CoV-2 Digital Tracking and Tracing Systems. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3582550. 

Zifei, C. (2022, December 18). China can still use big data to control citizens despite ditching COVID-19 app. Radio Free Asia. Retrieved on December 18, 2022, from https://www.rfa.org/english/news/china/data-12162022165549.html. 

OHCHR. (n.d.). Ratification Status for China. Retrieved on November 15, 2022, from https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=36&Lang=EN.