“Apps” against Covid-19? A (Swiss) call for an integrative approach

Technical discussions should pay attention to public health experiences, legal frameworks, and ethical principles

Translation of our op-ed published today in Neue Zürcher Zeitung

by Kerstin Noëlle Vokinger & Urs Gasser

Digital technologies and data play historically a unique role in dealing with COVID-19. Various types of digital applications in the fight against the pandemic are being tested and deployed around the globe. Thereby, countries are taking different approaches, both technologically and in terms of (personal) responsibility and empowerment of citizens, to manage the global crisis.

Digital “contact tracing” takes center stage in many countries. Epidemiologically, the aim is to detect and interrupt chains of the infection at an early stage. Apps are used to identify those users who have been in critical proximity to each other and to notify them in case of infection. Apple and Google are currently adapting their mobile phone operating systems to support this functionality.

This approach, also pursued in Switzerland, has potential. But it runs the risk of seeking the solution solely in technology. A complex problem like “contact tracing” cannot be solved with an app. Three basic prerequisites for the success of these technological innovations have so far received too little attention in the public debate.

First, experiences from the “public health” sector must be taken into account. “Contact tracing” has a long tradition wherein experts conduct detailed interviews with infected individuals before providing tailored guidance. Apps can hardly replace this human approach and are currently at best “exposure alerting.” They only make sense if we can build better bridges between software development and proven epidemiological methods.

The effectiveness of “contact tracing” apps depends on other factors, too. They can only develop their full potential when about 60% of the population uses them — a high threshold. It is also uncertain whether the apps would be used by a representative proportion of the population. And to fulfill their purpose, there must be sufficient testing capacity to test the notified users for COVID-19. Further, no current reporting and diagnostic system is perfect, and we need to clarify how to deal with false positive and negative test results. Finally, not all affected persons have the possibility to self-quarantine. These considerations suggest that digital “contact tracing” must be carefully coordinated with analog measures in order to be effective.

The second prerequisite concerns the law. Contrary to the “Silicon Valley” mentality, digital “contact tracing” must be put into a legal framework. Software developers are often focused on short-term solutions for a specific problem. The law, on the other hand, has to balance among diverse interests and take a long-term perspective. Principles of law serve to protect the people and the individual during the crisis and beyond. This means, first of all, that a legal basis is needed if the Swiss government is to play an active role in digital “contact tracing.” In view of the extraordinary situation, the Swiss Federal Council has a temporary, far-reaching authority under the Federal Constitution and the Epidemics Act. However, the concrete measures must be regulated in a temporary ordinance.

It is crucial that basic rights and fundamental legal principles are respected. Experience from the US around 9/11 shows that violations in times of crisis can have irreversible consequences. These rights and principles have historically been geared towards analog measures, but must now also apply to digital phenomena. For example, according to Swiss constitutional law, every person is entitled to protection against misuse of his or her personal data. In addition to fundamental rights, the Swiss Federal Constitution contains the basic assumption that each person assumes responsibility for himself or herself and does everything in his or her power to help the country and society to cope with its tasks. Governmental action only comes into play when the principle of personal responsibility no longer works. Even then, there are limits: if, for example, a “contact tracing” app fails to succeed despite government recommendations, there is the temptation to oblige citizens to use it in order to avoid another economically damaging lockdown. In the light of the legal principles mentioned above, and based on an initial assessment, requiring a mandatory use would be illegal under Swiss law.

A third and final point: compliance with legal principles is a necessary, but not sufficient, condition in the digital fight against COVID-19. Since law cannot regulate all details, a calibrated ethical compass of all actors and appropriate accountability mechanisms is needed. Ethical principles and practices, as developed in the health — and more recently also in the tech sector — can put digital “contact tracing” on a normative foundation, which in turn requires more dialogue across disciplines.

Trust between citizens and the government, but also among citizens themselves, is not only worthy of legal protection. For a small country like Switzerland, it is a constitutive factor. It must not be jeopardized out of a well-intentioned affinity for technology — especially not in times of crisis.

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