By Paul Bernal

Matt Hancock and Boris Johnson have been trying to persuade us that it’s our civic duty to take part in their ‘test and track’ programme, including the use of their previously much vaunted contact tracing app. In practice, in relation in particular to that app, the opposite may well be the case: it’s your civic duty not to download, let alone use, the app. Indeed, it’s your civic duty to resist it actively.

Civic duty is not a term often used in the UK, but the meaning is fairly simple and clear. It is your duty to society as a whole. Your responsibility to your fellow citizens. In this case, Hancock and Johnson are suggesting that to help our whole society to find its way out of the lockdown, people should show that responsibility by cooperating with the rules. That this is a bit rich coming from a government that has bent over backwards to find excuses for the pretty blatant civic irresponsibility shown by Dominic Cummings in his travels to County Durham is fairly obvious – but that is really only a small part of what makes it wrong to support, download or use the app.

First of all, we need to be clear about the app. More importantly, perhaps, the government needs to be clear about the app. What is its purpose? How does it propose to achieve that aim?

Ostensibly, the app is intended to trace when people might have made contact with someone potentially infected with coronavirus, so that they can be told to self-isolate, to avoid spreading the virus. It does that through the magic of Bluetooth – the basic theory being that when one phone running the app gets in Bluetooth range of another phone with the app running, they both record that fact, and if either of those phones then registers that its owner has tested positive for the virus, the other is then automatically notified that they’ve been within range, and hence might have caught the virus too.

So far, so good, at least in theory. Contact tracing apps have been developed all over the world using this idea, and though they all seem to have problems of one sort or another (things like not recognising the existence of walls, so that they note you’re ‘in contact’ with someone you’re safely protected from) the basic idea might well at least help with contact tracing. Indeed, Apple and Google, whose operating systems (iOS and Android, respectively) dominate the mobile phone market, have worked together to develop something that should work on their platforms. Their plan, however, is relatively privacy-friendly in that it does the basic minimum, just telling phone-owners they need to self-isolate, keeping the data about contacts on the phones themselves (a ‘decentralised’ system), and not gathering (much) extraneous data.

This, however, wasn’t good enough for the UK – and this is where the problems started to kick in. The UK wanted more. They wanted (and still want) a centralised system, where the data about contacts (including their locations and much more) is uploaded into a central database and the authorities (and those working with the authorities) could access and analyse that data. So, pretty much in secret, they worked on their own system, and did it in the kinds of ways that have characterised many of the worst aspects of tech-development over the last few years.

This, of course, is where Dominic Cummings comes in again. The UK plan follows the pattern of much of Cummings’s work with the Leave campaign – harnessing the manipulative power of data, working in secret and in partnership with some of the most untrustworthy people in the field, and sidestepping those aspects of the authorities that might have held them to account. The Information Commissioner, for example, didn’t get to see their Data Protection Impact Assessment until after the pilot programme on the Isle of Wight had started. And when the privacy notice for the test and trace programme was released, it was full of the kind of things that ring alarm bells – from the use of US rather than UK or EU terms to disturbing ideas like keeping the data from infected people’s phones for 20 years.

The pattern is all too familiar. Secrecy. Lack of openness. Failure to respect rights – and not just privacy. Failure to cooperate, either with other countries or with the tech companies. Arrogance and exceptionalism – the Brits can do it better, foreigners’ ideas weren’t good enough. In practice, of course, as well as everything else, this doesn’t even work – and the technological problems with the app that have meant its delay and the more recent downplaying of it in relation to the overall test, track and isolate programme were all too predictable. Deception, too, because the real reasons for the centralised system and for going it alone look almost certain to be connected with the way that the Apple/Google system – and other decentralised systems – make it harder to use the app technology for other purposes, and don’t provide the hoard of data (and future data gathering capabilities) that a centralised system would.

Sometimes the cat has been let out of the bag when people involved have looked at future possibilities – but mostly it’s been all about how the app would help us with this specific problem. None of that is really true. If they wanted just to help with the coronavirus, they would, could and should have worked with the Apple/Google system, with a more privacy-friendly system, and worked with international partners. They didn’t – or at least they haven’t yet, because the technical failures of their own system – failures that arise in part because they’re trying to do more than they say, and are doing so in an uncooperative and privacy-invasive form – may well mean that they have to change their minds.

All of these are things that, both in theory and in practice, are the reverse of good civic practice, and if civic duty is to mean anything it should mean discouraging this kind of an approach. We shouldn’t be supporting secrecy, exceptionalism and deception. Our civic duty is to discourage this, both in theory and in practice. We need right now to persuade the government to change tack, to move in another direction.

This need to ‘nudge’ the government is all too familiar in this crisis. Throughout the process, the government has needed to be nudged in the right direction. More often, they needed to be dragged, kicking and screaming in the right direction: They needed to be pushed back to prioritising testing. They needed to be pushed into stopping the major sports events; they supported Cheltenham, and only moved on football because the Premier League moved first, for example. They needed to be pushed to take the PPE crisis more seriously. They needed to be pushed into looking properly at care homes. They need nudging all the time.

That is our real civic duty. We need to work hard to make the government make better decisions all the way. With the contact tracing app, this includes nudging them to take privacy seriously, nudging them to avoid the magical thinking that makes people believe that you can solve serious, societal problems with a little bit of tech (you really can’t, and not just in this case), but most importantly nudging them into taking us seriously. Better government is crucial now – government that listens to people rather than riding roughshod over them and over their rights. We don’t have many ways to make our government better, so we need to take the opportunities when they come.

Looking at the app in particular again, this is also a practical necessity. Continue down the current path and we waste crucial time, energy, expertise and money pushing something that won’t work, will damage our rights and encourage the worst instincts of those in power. Another approach is possible. The sooner we take it, the better.

Paul Bernal is Associate Professor in Law at the University of East Anglia, UK, and the author of The Internet, Warts and All: Free Speech, Privacy and Truth (Cambridge University Press). He tweets at: @PaulbernalUK