Canadian Lawyer

July/August 2020

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www.canadianlawyermag.com 27 to determine which measures are necessary or effective because society's understanding of the virus is constantly developing. For example, it is unclear whether a tempera- ture scan is effective because of the multi- tude of reasons a person would have an elevated temperature, he says. "Taking somebody's temperature every time they show up for work or visit a facility . . . a lot of people would consider that to be a fairly intrusive collection of personal information," Elder says. Being quizzed on personal health infor- mation and the social interactions a person has had is also sensitive information, not unusual for an international border but quite unusual to ask a customer or sales- person visiting a facility, he says. As to how organizations are using contact tracing and active screening, Elder says the official guidance privacy with which lawyers are working is "very general." "In some ways, that's understandable because it's moving in real time, what we know and what could be effective and what isn't effective," he says. "It's also very context-specific. What's permissible in one type of facility might not be permissible in another type of facility, depending on the type of contact people are likely to have within the facility." With the level of uncertainty among orga- nizations as to their privacy requirements, Elder says, he expects privacy commis- sioners to allow leeway to organizations operating in good faith who implemented measures to prevent viral spread in their workplace, based on the knowledge avail- able at the time. It likely won't be a "gotcha exercise" from the authorities, he says. "I think that they recognize this as a very unusual situation," Elder says. On the other hand, implementing intru- sive measures without the concrete objec- tive of reducing the spread of the virus but done for appearance's sake or for customer peace of mind will be viewed unfavourably by privacy commissioners, he says. "To the extent that it involves people's personal information, if there's no real reason to collect it other than make people feel better, I don't know that that would necessarily pass muster," Elder says. ABTraceTogether is the contact tracing app launched by the Alberta government. Elder says the app, which uses Bluetooth to identify other users and allows Alberta Health to track who infected users have contacted, balances the privacy implications and effective viral spread prevention "fairly well." "It's Bluetooth only. Very minimal collec- tion of data. It's voluntary. There's no central storage of information. It's just stored locally," he says. "They did a pretty good job and they have a website up. Kind of remark- able that it got pulled together that quickly." Other contact tracing apps use GPS, which give health officials a more exten- sive view of where the virus has touched. The privacy tradeoff is greater, says Elder, because user movement is always being tracked. "Generally, employers want to know where people are in the workplace now more than ever." Daniel Michaluk, Hicks Morley Hamilton Stewart Storie LLP *OfferexpiresSeptember30 th ,2020.Validfornewcustomersonly.Couponcodemustbeprovidedat projectinitiation.Onlyonecouponcodecanbeusedperorganization. AUG2020 Get3monthsFREEhosting*withcouponcode: Self-serviceeDiscoverymodelalsoavailable! Collection,Processing,EarlyCaseAssessment,Culling, DocumentReview,Production FullEnd-to-EndeDiscoveryServices 1151GorhamSt,Unit8,Newmarket,ONL3Y8Y1 | info@nearzerodiscovery.com | 289-803-9730 | nearzerodiscovery.com

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