While government will be setting up a national tracing database to determine the exposure of persons infected with coronavirus (COVID-19), it says it will appoint a judge to safeguard the rights of citizens whose information will be tracked and traced.
Yesterday, the Department of Cooperative Governance and Traditional Affairs (COGTA) and ministers of the National Command Council (NCC) announced enhanced lockdown regulations, including those that allow tracking and tracing via cellphones.
The pronouncement followspresident Cyril Ramaphosa’s COVID-19 update this week, indicating mobile technology will be central to SA’s efforts to screen, test, trace and medically manage the coronavirus pandemic.
Ministers of the NCC revealed the amended regulations in line with efforts to enhance the national response to the deadly coronavirus, which has infected 1 462 South Africans and claimed the lives of five to date.
To this end, government is looking to the tracing database to identify who has been tested for the virus, what their results say and who has tested positive.
The regulations state: “The National Department of Health shall develop and maintain a national database to enable the tracing of persons who are known or reasonably suspected to have come into contact with any person known or reasonably suspected to have contracted COVID-19.
“The COVID-19 tracing database shall include all information considered necessary for the contact tracing process to be effective, including but not limited to – the first name and surname, identity or passport numbers, residential address and other address where such person could be located, and cellular phone numbers of all persons who have been tested for COVID-19; the COVID-19 test results of all such persons; and the details of the known or suspected contacts of any person who tested.”
Judicial oversight
In line with the tracing and tracking, the regulations make provision for the designation of a COVID-19 judge.
This, according to government, is to ensure the right to privacy of individuals affected is protected, as the designated judge may provide for further steps to ensure the right to privacy is protected.
“The Cabinet member responsible for justice and correctional services shall designate a judge who has been discharged from active service under section 3(2) of the Judges’ Remuneration and Conditions of Employment, 2001 (Act No 47 of 2001) or a retired High Court judge as the COVID-19 designated judge.
“The director-general of health must file a weekly report with the COVID-19 designated judge, setting out the names and details of all persons whose location or movements were obtained in terms of sub-regulation 10(a) and 10(b) respectively.
“The COVID-19 designated judge may make such recommendations to the Cabinet members responsible for cooperative governance and traditional affairs, health and justice and correctional services as he or she deems fit regarding the amendment or enforcement of this regulation in order to safeguard the right to privacy while ensuring the ability of the Department of Health to engage in urgent and effective contact tracing to address, prevent and combat the spread of COVID-19.”
In addition, the regulations stipulate that information contained in the tracing database is “confidential and no person may disclose the information unless authorised to do so, or the disclosure is necessary for the purpose of addressing, preventing or combatting the spread of COVID-19.”
“The director-general of health shall, within six weeks after the national state of disaster has lapsed, or has been terminated, notify every person whose information has been obtained in terms of sub-regulation (10) that information regarding their location or movements was obtained in terms of sub-regulation (10).
“Within six weeks after the national state of disaster has lapsed or has been terminated, the information on the COVID-19 tracing database shall be de-identified; the de-identified information on the COVID-19 tracing database shall be retained and used only for research, study and teaching purposes.”
Far-reaching regulations
Independent ICT analyst and researcher Dr Charley Lewis says extraordinary situations require extraordinary measures.
However, the track and trace regulations that emanated from COGTA are draconian and far-reaching, he believes.
“Indeed, they are more akin to the kinds of measures that have emanated from authoritarian regimes like Israel and China.
“The debate over where the trade-off line between personal privacy and the protection of public health lies, involves a complex and difficult set of moral considerations and ethical judgements. And the new regulations are certain to provoke much debate, and an outcry from privacy advocates.
“The newly-established Information Regulator appears to have been bypassed in the drafting of these regulations, as they are not mentioned or accorded any oversight role in their application, which role is instead assigned to a retired judge.
"While the abrogation of the informed consent and privacy rights in the updated regulations is a matter of grave concern, the regulations do contain important measures protecting the information thus obtained from disclosure. And the post-COVID-19, destruction and de-identification provisions are essential and welcomed.”
Government spying
Meanwhile, communications and digital technologies minister Stella Ndabeni-Abrahams has had to quell fears that the contact tracing database will be used by government to spy on citizens.
Ndabeni-Abrahams emphasised the database will be used to attain information that can assist government in minimising the spread of coronavirus.
“When we say we are going to use cellphone numbers, it doesn’t mean we are going take anybody’s number. Those that test and are found to be positive…it is those people that the Department of Health will seek permission from the Electronic Communications Network Service [licensees] to access their geolocation.”
In turn, people who have been in contact with a person who has tested positive for COVID-19 will be identified through the process of contact tracing, the minister added.
“I know that people have been concerned that government wants to spy on people. This is not spying on anyone. We do respect that everyone has the right to privacy, but in a situation like this, our individual rights do not supersede the country’s rights. The most important and critical right is ensuring the safety of South Africans.
“We are on lockdown because of the virus that is spreading. It is in our interest as government as well as South Africans to ensure we minimise the spread of the virus.”
According to Ndabeni-Abrahams, government will not intercept phone calls of citizens in its process of contact tracing.
To read the full COVID-19 regulations and amendments, click here.
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