Why is everyone suddenly buzzing about TraceTogether?
Last Monday, Minister of State for Home Affairs Desmond Tan stated in parliament that the police can access data gathered by TraceTogether tokens for criminal investigations. This was in response to a question posed by Member of Parliament (MP) for Holland-Bukit Timah Group Representation Constituency (GRC) Mr Christoper De Souza.
However, previously in June 2020, Dr Vivian Balakrishnan, the Minister-in-charge of the Smart Nation initiative, had allayed fears by assuring Singaporeans that the government would only use TraceTogether data for COVID-19 contact-tracing purposes. This assurance might have contributed to higher adoption rates of TraceTogether, which surpassed the government’s target of 70% in late December 2020.
Therefore, the clarification on 4 Jan came across to many as backtracking on the previous stance on the TraceTogether programme. Some citizens have said that they felt “betrayed” by the authorities and would use TraceTogether less because of this.
What does the law say about the use of TraceTogether data?
At the time of this article’s writing, no new laws have been proposed or created concerning the use of TraceTogether data.
Rather, the power of the police to access TraceTogether logs and data to assist in criminal investigations arises from the existing Section 20 of the Criminal Procedure Code (CPC), which applies to all data under Singapore’s jurisdiction—including TraceTogether data. According to Section 20, subsection 1A, paragraph b of the Criminal Procedure Code, “where a police officer… considers that any data … is necessary or desirable for any investigation, inquiry, trial or other proceeding under this Code, the police officer or authorised person may—in the case of any data that is contained in or available to a computer— issue a written order to require a person who is believed to have power to access the data from that computer to authenticate a copy of the data and to produce a copy of the data”.
TraceTogether also updated their privacy statement page to reflect this clarification on Monday, 4 January 2021.
Referring to his earlier assurance to the public that TraceTogether data would be used solely for COVID-19 contact tracing, Dr Balakrishnan said that he “had not thought of the CPC when I spoke earlier”.
Why might this be an issue from a legal perspective?
Law and Home Affairs Minister K Shanmugam stressed that the police’s use of TraceTogether data would be restricted to “very serious offences”.
He gave the example of a murder investigation to illustrate when TraceTogether data might be used:
“Let’s say there is a murder… and information is available on a TraceTogether token. If the police chose not to seek that information, you can imagine how the victims’ family and indeed the rest of Singapore might react to that situation.”
So in theory, one’s TraceTogether data could be used in such an instance to establish or disprove a suspect’s alibi in criminal proceedings.
So far, TraceTogether data has been used once to help in a murder investigation.
Is the uproar justified?
TraceTogether collects only Bluetooth proximity data and not location data. This means that TraceTogether can only tell what other devices you have been in contact with but not the exact location where you contacted them. This is also the reason why SafeEntry check-ins at a physical location are still required, along with TraceTogether, in Phase 3, as opposed to being replaced altogether by TraceTogether
Furthermore, the police can assess TraceTogether data only by requiring a person involved in or assisting in a criminal investigation to produce his smartphone or token (i.e. they cannot access it remotely).
Legal experts interviewed by the Straits Times and Today seemed to think that the uproar over TraceTogether was less a legal issue than it was a communications and public relations issue. However, their response on whether the CPC should be amended to exclude TraceTogether data—and whether this move would lead to greater benefits or costs as a whole—was less unified. Some thought that it would serve the greater public good to exclude TraceTogether data from the CPC to reassure citizens and get them to keep using TraceTogether, while others believed that such a move would be impractical or pointless because “users give away far more intrusive data voluntarily on their devices every day when they use social media or public IT infrastructure”.
Perhaps the bigger problem here is the perceived backtracking by the government. This could have a large impact on TraceTogether adoption rates and resultantly, contact tracing efforts. Citizens might resist the use of TraceTogether because they are leery of the government’s commitment to its keeping its promises about TraceTogether. More specifically, the promise that TraceTogether will be stood down after the pandemic.
To quote one Today interviewee: “It’s kind of like the start of your worst fears happening, and it may unravel further.”
Top photo credit: Yahoo News Singapore file photo
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.