Contact tracing, privacy, magical thinking – and trust!

The saga of the UK’s contact tracing app has barely begun but already it is fraught with problems. Technical problems – the app barely works on iPhones, for example, and communication between iPhones requires someone with an Android phone to be in close proximity – are just the start of it. Legal problems are another issue – the app looks likely to stretch data protection law at the very least. Then there are practical problems – will the app record you as having contact with people from whom you are blocked by a wall, for example – and the huge issue of getting enough people to download it when many don’t have smartphones, many won’t be savvy enough to get it going, and many more, it seems likely, won’t trust the app enough to use it.

That’s not even to go into the bigger problems with the app. First of all, it seems unlikely to do what people want it to do – though even what is wanted is unclear, a problem which I will get back to. Secondly, it rides roughshod over privacy in not just a legal but a practical way, and despite what many might suggest people do care about privacy enough to make decisions on its basis.

This piece is not about the technical details of the app – there are people far more technologically adept than me who have already written extensively and well about this – and nor is it about the legal details, which have also been covered extensively and well by some real experts (see the Hawktawk blog on data protection, and the opinion of Matthew Ryder QC, Edward Craven, Gayatri Sarathy & Ravi Naik for example) but rather about the underlying problems that have beset this project from the start: misunderstanding privacy, magical thinking, and failure to grasp the nature of trust.

These three issues together mean that right now, the project is likely to fail, do damage, and distract from genuine ways to help deal with the coronavirus crisis, and the best thing people should do is not download or use the app, so that the authorities are forced into a rethink and into a better way forward. It would be far from the first time during this crisis that the government has had to be nudged in a positive direction.

Misunderstanding Privacy – Part 1

Although people often underplay it – particularly in relation to other people – privacy is important to everyone. MPs, for example, will fiercely guard their own privacy whilst passing the most intrusive of surveillance laws. Journalists will fight to protect the privacy of their sources even whilst invading the privacy of the subjects of their investigations. Undercover police officers will resist even legal challenges to reveal their identities after investigations go wrong.

This is for one simple reason: privacy matters to people when things are important.

That is particularly relevant here, because the contact tracing app hits at three of the most important parts of our privacy: our health, our location, and our social interactions. Health and location data, as I detail in my most recent book, what do we know and what should we do about internet privacy, are two of the key areas of the current data world, in part because we care a lot about them and in part because they can be immensely valuable in both positive and negative ways. We care about them because they’re intensely personal and private – but that’s also why they can be valuable to those who wish to exploit or harm us. Health data, for example, can be used to discriminate – something the contact tracing app might well enable, as it could force people to self-isolate whilst others are free to move, or even act as an enabler for the ‘immunity passports’ that have been mooted but are fraught with even more problems than the contact tracing app.

Location data is another matter and something worthy of much more extensive discussion – but suffice it to say that there’s a reason we don’t like the idea of being watched and followed at all times, and that reason is real. If people know where you are or where you have been, they can learn a great deal about you – and know where you are not (if you’re not at home, you might be more vulnerable to burglars) as well as where you might be going. Authoritarian states can find dissidents. Abusive spouses can find their victims and so forth. More ‘benignly’, it can be used to advertise and sell local and relevant products – and in the aggregate can be used to ‘manage’ populations.

Relationship data – who you know, how well you know them, what you do with them and so forth – is in online terms one of the things that makes Facebook so successful and at the same time so intrusive. What a contact tracing system can do is translate that into the offline world. Indeed, that’s the essence of it: to gather data about who you come into contact with, or at least in proximity to, by getting your phone to communicate with all the phones close to you in the real world.

This is something we do and should care about, and could and should be protective over. Whilst it makes sense in relation to protecting against the spread of an infection, the potential for misuse of this kind of data is perhaps even greater than that of health and location data. Authoritarian states know this – it’s been standard practice for spies for centuries. The Stasi’s files were full of details of who had met whom and when, and for how long – this is precisely the kind of data that a contact tracing system has the potential to gather. This is also why we should be hugely wary of establishing systems that enable it to be done easily, remotely and at scale. This isn’t just privacy as some kind of luxury – this is real concern about things that are done in the real world and have been for many, many years, just not with the speed, efficiency and cheapness of installing an app on people’s phones.

Some of this people ‘instinctively’ know – they feel that the intrusions on their privacy are ‘creepy’ – and hence resist. Businesses and government often underestimate how much they care and how much they resist – and how able they are to resist. In my work I have seen this again and again. Perhaps the most relevant here was the dramatic nine day failure that was the Samaritans Radar app, which scanned people’s tweets to detect whether they might be feeling vulnerable and even suicidal, but didn’t understand that even this scanning would be seen as intrusive by the very people it was supposed to protect. They rebelled, and the app was abandoned almost immediately it had started. The NHS’s own ‘’ scheme, far bigger and grander, collapsed for similar reasons – it wanted to suck up data from GP practices into a great big central database, but didn’t get either the legal or the practical consent from enough people to make it work. Resistance was not futile – it was effective.

This resistance seems likely in relation to the contact tracing app too – not least because the resistance grows spectacularly when there is little trust in the people behind a project. And, as we shall see, the government has done almost everything in its power to make people distrust their project.

Magical thinking

The second part of the problem is what can loosely be called ‘magical thinking’. This is another thing that is all too common in what might loosely be called the ‘digital age’. Broadly speaking, it means treating technology as magical, and thinking that you can solve complex, nuanced and multifaceted problems with a wave of a technological wand. It is this kind of magic that Brexiters believed would ‘solve’ the Irish border problems (it won’t) and led anti-porn campaigners to think that ‘age verification’ systems online would stop kids (and often adults) from accessing porn (it won’t).

If you watched Matt Hancock launch the app at the daily Downing Street press conference, you could have seen how this works. He enthused about the app like a child with a new toy – and suggested that it was the key to solving all the problems. Even with the best will in the world, a contact tracing app could only be a very small part of a much bigger operation, and only make a small contribution to solving whatever problems they want it to solve (more of which later). Magical thinking, however, makes it the key, the silver bullet, the magic spell that needs just to be spoken to transform Cinderella into a beautiful princess. It will never be that, and the more it is thought of in those terms the less chance it has of working in any way at all. The magical thinking means that the real work that needs to go on is relegated to the background or eliminated at all, replaced only by the magic of tech.

Here, the app seems to be designed to replace the need for a proper and painstaking testing regime. As it stands, it is based on self-reporting of symptoms, rather than testing. A person self-reports, and then the system alerts anyone who it thinks has been in contact with that person that they might be at risk. Regardless of the technological safeguards, that leaves the system at the mercy of hypochondriacs who will report the slightest cough or headache, thus alerting anyone they’ve been close to, or malicious self-reporters who either just want to cause mischief (scare your friends for a laugh) or who actually want to cause damage – go into a shop run by a rival, then later self-report and get all the workers in the shop worried into self-isolation.

These are just a couple of the possibilities. There are more. Stoics, who have symptoms but don’t take it seriously and don’t report – or people afraid to report because it might get them into trouble with work or friends. Others who don’t even recognise the symptoms. Asymptomatic people who can go around freely infecting people and not get triggered on the system at all. The magical thinking that suggests the app can do everything doesn’t take human nature into account – let alone malicious actors. History shows that whenever a technological system is developed the people who wish to find and exploit flaws in it – or different ways to use it – are ready to take advantage.

Magical thinking also means not thinking anything will go wrong – whether it be the malicious actors already mentioned or some kind of technical flaw that has not been anticipated. It also means that all these problems must be soluble by a little bit of techy cleverness, because the techies are so clever. Of course they are clever – but there are many problems that tech alone can’t solve

The issue of trust

One of those is trust. Tech can’t make people trust you – indeed, many people are distinctly distrustful of technology. The NHS generates trust, and those behind the app may well be assuming that they can ride on the coattails of that trust – but that itself may be wishful thinking, because they have done almost none of the things that generate real trust – and the app depends hugely on trust, because without it people won’t download and won’t use the app.

How can they generate that trust? The first point, and perhaps the hardest, is to be trustworthy. The NHS generates trust but politicians do the opposite. These particular politicians have been demonstrably and dramatically untrustworthy, noted for their lies – Boris Johnson having been sacked from more than one job for having lied. Further, their tech people have a particularly dishonourable record – Dominic Cummings is hardly seen as a paragon of virtue even by his own side, whilst the social media manipulative tactics of the leave campaign were remarkable for their effectiveness and their dishonesty.

In those circumstances, that means you have to work hard to generate trust. There are a few keys here. The first is to distance yourself from the least trustworthy people – the vote leave campaigners should not have been let near this with a barge pole, for example. The second is to follow systems and procedures in an exemplary way, building in checks and balances at all times, and being as transparent as possible.

Here, they’ve done the opposite. It has been almost impossible to find out what was going to until the programme was actually already in pilot stage. Parliament – through its committee system – was not given oversight until the pilot was already under way, and the report of the Human Rights Committee was deeply critical. There appears to have been no Data Protection Impact Assessment done in advance of the pilot – which is almost certainly in breach of the GDPR.

Further, it is still not really clear what the purpose of the project is – and this is also something crucial for the generation of trust. We need to know precisely what the aims are – and how they will be measured, so that it is possible to ascertain whether it is a success or not. We need to know the duration, what happens on completion – to the project, to the data gathered and to the data derived from the data gathered. We need to know how the project will deal with the many, many problems that have already been discussed – and we needed to know that before the project went into its pilot stage.

Being presented with a ‘fait accompli’ and being told to accept it is one way to reduce trust, not to gain it. All these processes need to take place whilst there is still a chance to change the project, and change is significantly – because all the signs are that a significant change will be needed. Currently it seems unlikely that the app will do anything very useful, and it will have significant and damaging side effects.

Misunderstanding Privacy – part 2

…which brings us back to privacy. One of the most common misunderstandings of privacy is the idea that it’s about hiding something away – hence the facetious and false ‘if you’ve got nothing to hide you’ve got nothing to fear’ argument that is made all the time. In practice, privacy is complex and nuanced and more about controlling – or at least influencing – what kind of information about you is made available to whom.

This last part is the key. Privacy is relational. You need privacy from someone or something else, and you need it in different ways. Privacy scholars are often asked ‘who do you worry about most, governments or corporations?’ Are you more worried about Facebook or GCHQ. It’s a bit of a false question – because you should be (and probably are) worried about them in different ways, just as you’re worried about privacy from your boss, your parents, your kids, your friends in different ways. You might tell your doctor the most intimate details about your health, but you probably wouldn’t tell your boss or a bloke you meet in the pub.

With the coronavirus contact tracing app, this is also the key. Who gets access to our data, who gets to know about our health, our location, our movements and our contacts? If we know this information is going to be kept properly confidential, we might be more willing to share it. Do we trust our doctors to keep it confidential? Probably. Would we trust the politicians to keep it confidential? Far less likely. How can we be sure who will get access to it?

Without getting into too much technical detail, this is where the key current argument is over the app. When people talk about a centralised system, they mean that the data (or rather some of the data) is uploaded to a central server when you report symptoms. A decentralised system does not do that – the data is only communicated between phones, and doesn’t get stored in a central database. This is much more privacy-friendly, but does not build up a big central database for later use and analysis.

This is why privacy people much prefer the idea of a decentralised system – because, amongst other things, it keeps the data out of the hands of people that we cannot and should not trust. Out of the hands of the people we need privacy from.

The government does not seem to see this. They’re keen to stress how well the data is protected in ‘security’ terms – protected from hackers and so forth – without realising (or perhaps admitting) that the people we really want privacy from, the people who present the biggest risk to the users, are the government themselves. We don’t trust this government – and we should not really trust any government, but build in safeguards and protections from those governments, and remember that what we build now will be available not just to this government but to successors, which may be even worse, however difficult that might be to imagine.

Ways forward?

Where do we go from here? It seems likely that the government will try to push on regardless, and present whatever happens as a great success. That should be fought against, tooth and nail. They can and should be challenged and pushed on every point – legal, technical, practical, and trust-related. That way they may be willing to move to a more privacy-friendly solution. They do exist, and it’s not too late to change.

what do we know and what should we do about…? internet privacy

My new book, what do we know and what should we do about internet privacy has just been published, by Sage. It is part of a series of books covering a wide range of current topics – the first ones have been on immigrationinequality, the future of work and housing. 

This is a very different kind of book from my first two books – Internet Privacy Rights, and The Internet, Warts and All, both of which are large, relatively serious academic books, published by Cambridge University Press, and sufficiently expensive and academic as to be purchasable only by other academics – or more likely university libraries. The new book is meant for a much more general audience – it is short, written intentionally accessibly, and for sale at less than £10. It’s not a law book – the series is primarily social science, and in many ways I would call the book more sociology than anything else. I was asked to write the book by the excellent Chris Grey – whose Brexit blogs have been vital reading over the last few years – and I was delighted to be asked, because making this subject in particular more accessible has been something I’ve been wanting to do for a long time. Internet privacy has been a subject for geeks and nerds for years – but as this new book tries to show, it’s something that matters more and more for everyone these days.


It may be a short book (well, it is a short book, well under 100 pages) but it covers a wide range. It starts by setting the context – a brief history of privacy, a brief history of the internet, and then showing how we got from what were optimistic, liberal and free beginnings to the current situation – all-pervading surveillance, government involvement at every level, domination by a few, huge corporations with their own interests at heart. It looks at the key developments along the way – the world-wide-web, search, social networks – and their privacy implications. It then focusses on the biggest ‘new’ issues: location data, health data, facial recognition and other biometrics, the internet of things, and political data and political manipulation. It sketches out how each of these matters significantly – but how the combination of them matters even more, and what it means in terms of our privacy, our autonomy and our future.

The final part of the book – the ‘what should we do about…’ section – is by its nature rather shorter. There is not as much that we can do as many of us would like – as the book outlines, we have reached a position from which it is very difficult to escape. We have built dependencies that are hard to find alternatives to – but not impossible. The book outlines some of the key strategies – from doing our best to extricate ourselves from the disaster that is Facebook to persuading our governments not to follow the current ultimately destructive paths that it seems determined to pursue. Two policies get particular attention: Real Names, which though superficially attractive are ultimately destructive and authoritarian, fail to deal with the issues they claim to and put vulnerable people in more danger, and the current and fundamentally misguided attempts to undermine the effectiveness of encryption.

Can we change? I have to admit this is not a very optimistic book, despite the cheery pink colour of its cover, but it is not completely negative. I hope that the starting point is raising awareness, which is what this book is intended to do.

The book can be purchased directly from Sage here, or via Amazon here, though if you buy it through Amazon, after you’ve read the book you might feel you should have bought it another way!


Paul Bernal

February 2020 and the community…


The latest piece of health data news, that, according to the Telegraph, the hospital records of all NHS patients have been sold to insurers, is a body-blow to the scheme, but make no mistake about it, the scheme was already in deep trouble. Last week’s news that the scheme had been delayed for six months was something which a lot of people greeted as good news – and quite rightly. The whole project has been mismanaged, particularly in terms of communication, and it’s such an important project that it really needs to be done right. Less haste and much more care is needed – and with the latest blow to public confidence it may well be that even with that care the scheme is doomed, and with it a key part of the UK’s whole open data strategy.

The most recent news relates to hospital data – and the details such as we know them so far are depressingly predictable to many of those following the story for a while. The scheme relates to data currently held by GPs – the new scandal relates to data held by hospitals, and suggests that, as the Telegraph puts it:

“a report by a major UK insurance society discloses that it was able to obtain 13 years of hospital data – covering 47 million patients – in order to help companies “refine” their premiums.”

That is, that the hospital data was given or sold to insurers not in order to benefit public health or to help research efforts, but to help business to make more money – potentially to the detriment of many thousands of individuals, and entirely without those individuals’ consent or understanding. This exemplifies some of the key risks that privacy campaigners have been highlighting over the past weeks and months in relation to the – and adds fuel to their already partially successful efforts. Those efforts lay behind the recently announced six month delay – and unless the backers of change their approach, this last story may well be enough to kill the project entirely.

Underestimating the community

One of the key features of the farrago so far has been the way that those behind the project have drastically underestimated the strength, desire, expertise and flexibility of the community – and in particular the online community. That community includes many real experts, in many different fields, whose expertise strike at the heart of the story. As well as many involved in health care, there are academics and lawyers whose studies cover privacy, consent and so forth who have a direct interest in the subject. Data protection professionals with real-life knowledge of data vulnerability and the numerous ways in which the health services in particular have lost data over the years – even before this latest scandal. Computer scientists, programmers and hackers, who understand in detail the risks and weaknesses of the systems proposed to ‘anonymise’ and protect our data. Advocates and campaigners such as Privacy International, the Open Rights Group and Big Brother Watch who have experience of fighting and winning fights against privacy-invasive projects from the ID card plan to the Snoopers Charter.

All of these groups have been roused into action – and they know how to use the tools of a modern campaign, from tweeting and blogging to making their presence felt in the mainstream media. They’ve been good at it – and have to a great degree caught the proponents of on the hop. Often Tim Kelsey, the NHS National Director for Patients and Information and leader of the project, has come across as flustered, impatient and surprised at the resistance and criticism. How he reacts to this latest story will be telling.

Critical issues

Two specific issues have been particularly important: the ‘anonymisation’ of the data, and the way that the data will be sold or made available, and to whom. Underlying both of these is a more general issue – that people DO care about privacy, no matter what some may think.


On the anonymisation issue, academics and IT professions know that the kind of ‘de-identification’ that talks about is relatively easily reversed. Academics from the fields of computer science and law have demonstrated this again and again – from Latanya Sweeney as far back as 1997 to Arvind Narayanan and Vitaly Shmatikov’s “Robust De-anonymization of Large Sparse Datasets” in 2008 and Paul Ohm’s seminal piece in 2009 “Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization”. Given this, to be told blithely by NHS England that their anonymisation system ‘works’ – and to hear the public being told that it works, without question or doubt, naturally raises suspicion. There are very serious risks – both theoretical and practical that must be acknowledged and taken into account. Right now, they seem to either be denied or glossed over – or characterised as scaremongering.

The sale or misuse of data

The second key issue is that of the possible sale and misuse of data – one made particularly pertinent by the most recent revelations, which have confirmed some of the worst fears of privacy campaigners. Two factors particularly come into play. The first is that the experience of the last few years, with the increasing sense of privatisation of our health services, makes many people suspicious that here is just another asset to be sold off to the highest bidder, with the profits mysteriously finding their way into the pockets of those already rich and well-connected. That and the way that exactly who might or might not be able to access the data has remained apparently deliberately obscure makes it very hard to trust those involved – and trust is really crucial here, particularly now.

Many of us – myself included – would be happy, delighted even, for our health data to be used for the benefit of public health and better knowledge and understanding, but far less happy for our data to be used primarily to increase the profits of Big Pharma and the insurance industry, with no real benefit for the rest of us at all. The latest leak seems to suggest that this is a distinct possibility.

The second factor here, and one that seems to be missed (either deliberately or through naïveté) is the number of other, less obvious and potentially far less desirable uses that this kind of data can be put to. Things like raising insurance premiums or health-care costs for those with particular conditions, as demonstrated by the most recent story, are potentially deeply damaging – but they are only the start of the possibilities. Health data can also be used to establish credit ratings, by potential employers, and other related areas – and without any transparency or hope of appeal, as such things may well be calculated by algorithm, with the algorithms protected as trade secrets, and the decisions made automatically. For some particularly vulnerable groups this could be absolutely critical – people with HIV, for example, who might face all kinds of discrimination. Or, to pick a seemingly less extreme and far more numerous group, people with mental health issues. Algorithms could be set up to find anyone with any kind of history of mental health issues – prescriptions for anti-depressants, for example – and filter them out of job applicants, seeing them as potential ‘trouble’. Discriminatory? Absolutely. Illegal? Absolutely. Impossible? Absolutely not – and the experience over recent years of the use of black-lists for people connected with union activity (see for example here) shows that unscrupulous employers might well not just use but encourage the kind of filtering that would ensure that anyone seen as ‘risky’ was avoided. In a climate where there are many more applicants than places for any job, discovering that you have been discriminated against is very, very hard.

This last part is a larger privacy issue – health data is just a part of the equation, and can be added to an already potent mix of data, from the self-profiling of social networks like Facebook to the behavioural targeting of the advertising industry to search-history analytics from Google. Why, then, does matter, if all the rest of it is ‘out there’? Partly because it can confirm and enrich the data gathered in other ways – as the Telegraph story seems to confirm – and partly because it makes it easy for the profilers, and that’s something we really should avoid. They already have too much power over people – we should be reducing that power, not adding to it.

People care about privacy

That leads to the bigger, more general point. The reaction to the saga so far has been confirmation that, despite what some people have been suggesting, particularly over the last few years, people really do care about privacy. They don’t want their most intimate information to be made publicly available – to be bought and sold to all and sundry, and potentially to be used against them. They have a strong sense that this data is theirs – and that they should be consulted, informed, and given some degree of control over what happens to it. They particularly don’t like the feeling that they’re being lied to. It happens far too often in far too many different parts of their lives. It makes them angry – and can stir them into action. That has already happened in relation to – and if those behind the project don’t want the reaction to be even stronger, even angrier, and even more likely to finish off a project that is already teetering on the brink, they need to change their whole approach.

A new approach?

  1. The first and most important step is more honesty. When people discover that they’re not being told the truth – they don’t like it. There has been a distinct level of misinformation in the public discussion of – particularly on the anonymisation issue – and those of us who have understood the issues have been deeply unimpressed by the responses from the proponents of the scheme. How they react to this latest revelation will be crucial.
  2. The second is a genuine assessment of the risks – working with those who are critical – rather than a denial that those risks even exist. There are potentially huge benefits to this kind of project – but these benefits need to be weighed properly and publicly against the risks if people are to make an appropriate decision. Again, the response to the latest story is critical here – if the authorities attempt to gloss over it, minimise it or suggest that the situation is totally different, they’ll be rightly attacked.
  3. The idea that such a scheme should be ‘opt-out’ rather than ‘opt-in’ is itself questionable, for a start, though the real ‘value ‘ of the data is in it’s scale, so it is understandable that an opt-out system is proposed. For that to be acceptable, however, we as a society have to be the clear beneficiaries of the project – and so far, that has not been demonstrated – indeed, with this latest story the reverse seems far more easily shown.
  4. To begin to demonstrate this, particularly after this latest story, a clear and public set of proposals about who can and cannot get access to the data, and under what terms, needs to be put together and debated. Will insurance companies be able to access this information? Is the access for ‘researchers’ about profits for the drugs companies or for research whose results will be made available to all? Will any drugs developed be made available at cheap prices to the NHS – or to those in countries less rich than ours? We need to know – and we need to have our say about what is or is not acceptable.
  5. Those pushing the project need to stand well clear of those who might be profiting from the project – in particular the lobby groups of the insurance and drug companies and others. Vested interests need to be declared if we are to entrust the people involved with our most intimate information. That trust is already rapidly evaporating.

Finding a way?

Will they be able to do this? I am not overly optimistic, particularly as my only direct interaction with Tim Kelsey has been on Twitter where he first accused me of poor journalism after reading my piece ‘Privacy isn’t selfish’ (I am not and have never presented myself as a journalist – as a brief look at my blog would have confirmed) and then complained that a brief set of suggestions that I made on Twitter was a ‘rant’. I do rant, from time to time, particularly about politics, but that conversation was quite the opposite. I hope I caught him on a bad day – and that he’s more willing to listen to criticism now than he was them. If those behind this project try to gloss over the latest scandal, and think that this six month delay is just a chance for them to explain to us that we are all wrong, are scaremongering, don’t understand or are being ‘selfish’, I’m afraid this project will be finished before it has even started. Things need to change – or they may well find that never sees the light of day at all.

The community needs to be taken seriously – to be listened to as well as talked to – and its expertise and campaigning ability respected. It is more powerful than it might appear – if it’s thought of as a rag-tag mob of bloggers and tweeters, scaremongerers, luddites and conspiracy theorists, could go the way of the ID card and the Snoopers Charter. Given the potential benefits, to me at least this could be a real shame – and an opportunity lost.