On June 16, 2020, the European Data Protection Board (the “EDPB”) released a statement on the data protection impact of the interoperability of contact tracing apps within the EU (the “Statement”). The EDPB issued this Statement following the publication of “Interoperability guidelines for approved contact tracing mobile applications in the EU” by the eHealth Network on May 13, 2020. In its guidelines, the eHealth Network calls for an interoperable framework in the EU that would enable users to rely on a single contact tracing application regardless of the Member State or region in which they reside.

The EDPB indicates in its Statement that contact tracing apps may be rolled out as a temporary solution to fight the further spread of COVID-19, provided that these apps are effective, proportionate and part of a comprehensive public health strategy. Furthermore, other less privacy-intrusive alternatives should be assessed and given preference if they would achieve the same purpose.

The EDPB recognizes that interoperability between different contact tracing apps in the EU may increase the effectiveness of these apps in the fight against COVID-19, particularly for individuals who live in border regions or travel. However, ensuring interoperability is technically challenging and may require major changes to existing apps. Furthermore, the EDPB considers that, in addition to the issues identified in its Guidelines 04/2020 on the use of location data and contact tracing tools in the context of the COVID-19 outbreak, interoperability of contact tracing apps presents a number of key data protection challenges that require specific attention, including:

  • Users’ control over their data: The sharing of data concerning individuals who have been diagnosed with COVID-19 or have tested positive between contact tracing apps should be triggered only upon voluntary action of the concerned user. The EDPB stresses that data subjects must remain in control of their data and that interoperability should not be a pretext to extend the collection of personal data beyond what is necessary.
  • Transparency: Interoperability would require the processing of contact tracing data for a new purpose and the disclosure of such data to additional recipients. In light of this, the EDPB emphasizes the importance of complying with the EU General Data Protection Regulation’s transparency requirements. Users should have a clear understanding of what the use of the app entails, the scope and conditions of the processing of their personal data and the recipients to whom their personal data will be disclosed.
  • Legal basis: According to the EDPB, data controllers may need to adjust the legal basis they initially relied on to include the new processing and sharing of data taking place in the context of the interoperability between contact tracing apps. If relying on the public interest legal basis, national law may need to be amended to enable the transfer of data to other EU Member State’ contact tracing apps. Similarly, if users’ consent was initially relied upon, the consent mechanism may also need to be revised to ensure that consent is sufficiently specific and granular to cover the data processing resulting from interoperability with other contact tracing apps.
  • Controllership: Any data processing in connection with ensuring interoperability should be considered a separate data processing activity, and, as such, the EDPB stresses the importance of assessing the roles of the different parties involved in each activity. Furthermore, their responsibilities should be clearly defined, communicated to data subjects and taken into consideration when carrying out the Data Protection Impact Assessment (“DPIA”).
  • Exercise of data subjects’ rights: The interoperability of contact tracing apps must not prevent data subjects from exercising their rights, and the EDPB indicates that a clear and easy solution must be implemented to facilitate data subjects’ exercise of their rights.
  • Data retention and minimization: The EDPB states that lack of a coordinated approach should not lead to data being stored for longer than necessary. In light of this, the EDPB recommends adopting a common level of data minimization and common data retention period to prevent data from being stored for longer than necessary.
  • Information security: The EDPB recommends data controllers take into account any increase in information security risks due to the additional processing and the involvement of new actors, in particular, risks relating to the security of data in transit between servers, and to address, when required, the relevant measures adopted in the DPIA.
  • Data accuracy: In case of large divergences between the systems, interoperability may entail a lowering of data quality. The EDPB stresses the importance of informing users of such risks and adopting measures that safeguard data accuracy in the interoperable system.