Experts warn of constitutionally protected rights being violated by ArriveCAN app – National

A recent bug in the controversial ArriveCAN app, which sent erroneous messages to fully vaccinated travelers saying they needed to quarantine, affected more than 10,000 people, according to the Canada Border Services Agency (CBSA).

The magnitude of the error, revealed in a statement from the CBSA to Global News, is equivalent to 0.7 percent of the typical number of cross-border travelers per week.

Global News has also learned that it took the government 12 days to notify travelers of the error.

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This worries some data and privacy experts, who say the app may violate the Charter of Rights and Freedoms, which protects the right to free movement.

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Experts are also debating whether the unjustified order to stay in the apartment for two weeks constituted unlawful detention.

“It causes direct harm to people who receive and follow this false notification,” said Matt Malone, a law professor at Thompson River University in Kamloops, BC, who specializes in trade secrets and confidential information.

“The government has not provided enough transparency as to why this happened. And there must be better accountability practices to ensure this doesn’t happen again.”


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ArriveCAN was originally launched in April 2020 as a voluntary tool designed to help border guards determine if individuals are eligible to enter Canada and if they meet strict COVID-19 requirements.

Seven months later, it became mandatory for all air travelers. In March 2021 it was extended to all people crossing the border by land.

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The app collects personally identifiable information such as name, phone number, address and vaccination status, which is then used to assist public health officials in enforcing government quarantine rules.

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The recent ArriveCAN “glitch” is part of a growing list of concerns about the app

But the latest bug, which the CBSA says it identified on July 14 and fixed six days later, meant the app automatically emailed thousands of fully vaccinated travelers who had not tested positive for COVID-19 and told them they needed to be quarantined.

The news also raises concerns that the government doesn’t have a handle on the app’s automated decision-making capabilities, which in theory are only meant to determine whether information uploaded to the app is accurate.

“I think it’s very troubling and I think it raises some important questions about government use of AI,” said Teresa Scassa, Canadian research director in information law and policy at the University of Ottawa.

“This is one of their flagship tools and there doesn’t seem to be any transparency or clear governance.”

The government says ArriveCAN is the fastest and most efficient way to screen people crossing the border to ensure they are vaccinated against COVID-19 and to monitor the spread of new variants.

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It’s also important that travelers understand that CBSA and public health officials are responsible for determining if someone needs to be quarantined – not the app.

However, travelers who received the erroneous quarantine order have told Global News there is no way to contact the government to rectify the error. Efforts to do so were met with automated messages or agents unable to specifically discuss the issue.

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Scassa said an early review of ArriveCAN, conducted by the government during the app’s “implementation phase,” was intended to identify potential risks to Canadians’ rights and freedoms and help mitigate them.

But the review — known as an Algorithmic Impact Assessment (AIA) — isn’t clear about how the app is intended to work or the scope of its automated decision-making power, Scassa said.

A section of the review designed to indicate whether ArriveCAN has the power to make decisions itself without the help of a human says that decisions “may be made without direct human involvement.”


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Scassa said this disagreed with another section of the review, which says the app is used “only” to assist human decision-makers.

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Either the app makes decisions on its own or it doesn’t, Scassa said. Both statements cannot be true.

“This isn’t how automated decision-making should work,” she said.

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There is no way of knowing for sure how many people have followed the erroneous quarantine orders sent due to the disruption.

A software update for ArriveCAN released on June 28 led to the glitch, according to the CBSA. Prior to this update, some individual travelers experienced isolated issues with the app, the CBSA said, but no widespread issues were reported.

The CBSA also said it had compiled a list of travelers affected by the glitch and shared those details with the Public Health Agency of Canada (PHAC), which is responsible for contacting people after crossing the border.

PHAC said it received the list from the CBSA on July 25, but added that it only contained the email address and unique identification number generated by the app for each traveler.

The agency said it emailed those travelers on July 26 — 12 days after the error was first noticed — that they or someone in their group of travelers had received the order in error and that they weren’t under would have to be quarantined.

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Data and privacy experts also have broader concerns about ArriveCAN.

The technology behind the app is considered a “trade secret,” according to the app’s AIA.

This means that any attempt to obtain information about how the software works is likely to result in a refusal from the government, as these details are often considered confidential third-party information under federal privacy and access-to-information laws.

The companies that developed the app for the government have also cited non-disclosure agreements and the “secret” classification of their work as reasons why they can’t release details.

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Malone, the data and privacy law expert, said the lack of publicly available information about ArriveCAN’s software is deeply concerning, especially given the recent glitch.

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He also said it is worrying that the government would define this type of technology as a trade secret given the potential impact of ArriveCAN on the lives of Canadians.

“It highlights fundamental problems we have when appealing under existing data protection laws,” he said.


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Carissima Mathen, a constitutional expert and law professor at the University of Ottawa, said she’s not sure the recent ArriveCAN glitch rises to the level of constitutional breach.

That’s because it appears to have been relatively short-lived and the government has made efforts to fix the issue. She said the government has also made no attempt to justify the mistake and is not trying to enforce the flawed quarantine orders.

Still, she said, any erroneously made decision that affects a person’s fundamental rights is worrying. This is true regardless of whether the decision is being made by a human, such as a border guard, or an autonomous machine acting on behalf of the government.

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“It’s a mistake. So by definition it’s not a justifiable violation of your freedom,” Mathen said.

© 2022 Global News, a division of Corus Entertainment Inc.

https://globalnews.ca/news/9047177/experts-warn-arrivecan-app-could-be-violating-constitutionally-protected-rights/ Experts warn of constitutionally protected rights being violated by ArriveCAN app – National

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