On 2 April 2020, the Department of Co-operative Governance and Traditional Affairs released further amendments to the Disaster Management Act, 2002 (Act No. 57 of 2002). Among other things, this particular set of amendments creates and regulates a national COVID-19 contact tracing database.
The purpose of this database is to identify, monitor and track individuals infected with the COVID-19 virus or have been in actual or possible contact with someone infected with COVID-19.
Importantly, the amendments empower the Director-General of Health to, in writing and without prior notice, direct an electronic communications service provider for inclusion in the COVID-19 Tracing Database, to hand over information that it has available to it regarding:
the location or movements of any person known or reasonably suspected to have contracted COVID-19; and
the location or movements of any person known or reasonably suspected to have come into contact, during the period 5 March 2020 to the date on which the national state of disaster has lapsed or has been terminated, with a person who is known or reasonably suspected to have contracted COVID-19.
The holder of the above information must promptly comply with any official request as detailed above. Failure to comply may result in a fine and/or imprisonment.
The Amendments make little provision for complaint processing, security measures, or oversight. Despite the Amendments creating obligations for the proper handling, access and subsequent destruction of this information, the practicalities and implications are still not clear.
Further, digital rights groups and civil society actors have warned on the shortfalls of using location data to determine accurate proximity to COVID-19 infected persons.
It goes without saying that this extraordinary power will have an impact on the existing data protection and personal information legal framework in South Africa, as it creates a precedent for potential misuse, abuse and maladministration of critical and sensitive personal information.
American whistleblower, Edward Snowden, has commented that "surveillance due to the coronavirus outbreak could lead to long-lasting erosion of civil liberties".
The consequences of overbearing and potentially abusive personal information capturing systems, under the guise of pandemic relief and control, will need to be monitored and resisted in the appropriate forums.
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