Matt Malone is an assistant professor at Thompson Rivers University Law School.
Protecting Canadians from COVID-19 has been one of the federal government’s most pressing priorities over the past two years. As part of this effort, Ottawa has established several entry requirements under the Quarantine Act, including mandatory use of the ArriveCAN app by anyone wishing to enter the country. Failure to use the app – which will be enforced for air travelers since November 2020 and for all other travelers since February 2021 – can result in significant penalties and exceptions are rare.
But while ArriveCAN should help stop the spread of COVID-19, government justifications for doing so are becoming increasingly tenuous.
Think about what the app actually does. It collects travelers’ personal information and then issues a receipt, which they must present to an officer at the Canada Border Services Agency (CBSA). ArriveCAN does not validate eligibility to enter Canada; CBSA officials do this. Why does the government need an app for this? As the government states in the ArriveCAN Privacy Statement and its guidance, ArriveCAN “helps” the CBSA Officer to determine eligibility. The government has said the app cuts the decision-making process for the CBSA by 40 seconds.
This claim is hard to believe. As the President of the CBSA Officers Union told CBC two weeks ago: “We are in a situation where we are no longer doing our real job as border guards. We spend all our time on the app.” A union spokesman told the Canadian press last week, “We are so understaffed and spend so much time on this app that we really don’t have time to do our actual work .”
Such remarks are not only a visual problem. According to the quarantine law The government can only set “conditions” for entry into the country if “no reasonable alternatives” exist. Since ArriveCAN itself does not decide eligibility to enter the country – as it is merely “helping” the CBSA agent, Ottawa has no justification for mandating use of the app if it fails to serve that purpose. To mandate its use in such circumstances is a capricious use of state power. The app also raises equity concerns by pushing smartphone use to groups without easy access to or knowledge of such devices.
Even if ArriveCAN used to be about contact tracing, in most cases today it does not even record all relevant health data, such as the status of the booster vaccination. By contributing to snarls at airports and the border, it actually increases the chances of being exposed to the virus.
This disregard for protecting the health of Canadians and ignoring the enabling provisions of the Quarantine Act indicates the government’s intention to use ArriveCAN for purposes unrelated to the pandemic. As Public Safety Minister Marco Mendicino recently acknowledged, “ArriveCAN was originally developed for COVID-19, but has technological capabilities that go beyond that.” Yet it is still being enforced quarantine law.
So far, the government has largely received great respect from Canadians in applying emergency response measures to COVID-19. However, this is not guaranteed with ArriveCAN. Two weeks ago, the government admitted that the app was sending erroneous notifications instructing fully vaccinated and asymptomatic people to quarantine. The glitch affected about 10,200 people (Although Ottawa did not specify whether all of these individuals received quarantine orders).
Mandatory quarantine orders are no small technical error. They are a direct result of ArriveCAN’s lack of proper governance and oversight.
Which brings us to another issue: the government’s decision to designate parts of ArriveCAN as a trade secret and Block the app’s source code from disclosure. Except for the fact that it was designed with five private companies in mind – including one that consisted of no more than four employees and was given an uncompetitive contract worth $14 million – Canadians know almost nothing about how it was made or how it works.
This level of secrecy prevents access to the evidence needed to understand why and how these erroneous notifications were sent. It violates the principles of procedural fairness and gives Canadians no opportunity to challenge the app’s actions. Instead, the government engages in the most dangerous excesses of automated decision-making and algorithmic governance.
Our current data protection laws offer little useful transparency and accountability in such circumstances. The charter itself is also inadequate to remedy the situation: Throughout the pandemic, federal judges have repeatedly dismissed lawsuits to override emergency measures under the quarantine law.
But the government’s insistence on the use of automated decision-making and algorithmic governance technologies must be accompanied by transparency and accountability. ArriveCAN sets a worrying precedent.
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