After three months of social distancing restrictions due to a surge of COVID-19 cases that saw public gatherings banned, sporting and entertainment venues, as well as clubs, restaurants and bars closed over the holiday period, the Hong Kong Government eased some of those restrictions on 18 February 2021. This allowed certain sporting venues, along with some entertainment venues such as gyms and cinemas, to re-open. The restrictions on restaurants were also relaxed, allowing them to re-open for dine-in business for dinner. Instantly, the city sprang back to life with a noticeable uptick in the number of people out and about, on the streets and on public transport, particularly in the evenings.

These relaxed measures announced by the Government came with the condition that the venues were required to collect names, contact details, and time of entry of its customers to allow contact tracing. Alternatively, customers were asked to use the Government’s “Leave Home Safe” app. The Leave Home Safe app can be downloaded on a smartphone and allows people to scan a QR Code at the entrance of a venue to record their entry. It is certainly much faster and less hassle than using pen and paper. The Leave Home Safe app then stores the places and times of your visits for 31 days, and if there have been any reported cases at any of those venues later, it will notify you. All in all, you would think this use of technology is not controversial, given that an effective contact tracing system is considered a crucial measure for combating this epidemic and using a smartphone is certainly more efficient than manually recording on pen and paper.

Notwithstanding this laudable aim, as I lined up at restaurants or other venues that have been recently allowed to re-open, I did not see crowds of normally mobile-obsessed locals scanning the QR codes and using the app. Instead, there was a line for pens and a vicious battle to see how many more bits of papers could be stuffed into an already full box.

While the Government states that the Leave Home Safe app has been downloaded over 2.5 million times, but this has not been without controversy. For instance, the app topped download charts in many places outside of Hong Kong, such as Antigua, Belize, and the Cayman Islands. But even assuming it is at 2.5 million downloads, in a city of 7.5 million residents this is a low figure, particularly when compared to other countries with similar apps. For instance, in Singapore, the government’s “TraceTogether” app has a reported adoption rate of close to 80% of the population. You don’t need to be a decorated epidemiologist to know that the Singaporean app, as it more widely used, will be more tool effective in contact tracing than the Leave Home Safe app.

So, is the reason for the differing adoption rates because Singaporeans are less concerned about their privacy? While the online debate about the Leave Home Safe app has centred around privacy issues, this does not appear to be the differentiating factor. After the app’s initial launch in Singapore, there were also similar widespread privacy concerns, especially around whether the data collected by the app could be accessed by police for the purposes of criminal investigations. When the Minister of State for Home Affairs, Mr. Desmond Tan, confirmed that it could, the resultant uproar forced the Singapore Government to rush through legislation through Parliament in February to limit access to the data collected for use in seven categories of serious offences such as sexual assault, firearm offences and terrorism.

The low uptake of the app is even more surprising when you find out that the Leave Home Safe app has almost been deliberately designed to maximise privacy and minimize data collection and transfer - almost to the detriment of its effectiveness as a contact tracing app. The app’s terms and conditions, including the privacy policy, while sparsely worded do make it clear that you do not need to input personal data to use the app, it does not access GPS location data, the data is stored on your phone only, and all data is deleted if you uninstall the app. Importantly, there are limited transfers of data off your phone. The most significant being if you happen to test positive for COVID-19 and you wish to report positive or preliminary positive test result. In that case, you will be asked to consent to the transfer of your data, so they can notify others for contact tracing purposes.

Further, any data collected is handled in accordance with the requirements under the Personal Data (Privacy) Ordinance. One of the requirements of that Ordinance is that the data collected can only be used for a designated purpose. The accompanying Personal Information Collection Statement for the app tells us that the purpose of information collection is “for exposure notifications to users of the mobile app of the System, facilitate the work of the Government in controlling the spread of COVID-19 and related purposes” and that the Government will only transfer data to the government agencies and law enforcement agencies “deployed for epidemiological investigations and contact tracing, for the purposes of the initiative under relevant Ordinances and/or subsidiary legislations and all purposes related thereto.” It is in those circumstances that, as stated in the terms and conditions, you may be required to give a health officer information or data from the app that is in your possession and is relevant to the handling of the public health emergency.

This seems all in all relatively sensible. It seems minimal personal data is collected, data is not transferred without your consent, nor is it stored and retained in a central database and it is not accessible for other purposes, such as unrelated criminal investigations. Now, does this guarantee that it is beyond the reach of the National Security Law for Hong Kong? And, has anyone de-compiled this app to check it operates as it says on the label (which by the way, would be a violation of the terms and conditions)? No, but you can use the app without inputting any personal data, and you almost certainly bet that this app is more restrained than WeChat, Gmail and Facebook’s collection usage and tracking of you and your personal data.

Also, I have yet to see any privacy policies or personal information collection statements accompanying those paper forms asking for our personal details in it that we are handing over to the owners of restaurants and other venues at the door.

So, what explains this situation then, if it is not privacy concerns then? The answer is that the low adoption rate of this app is a symptom of the declining trust in the Government. Places with high adoption rates for contact tracing apps, like Singapore, New Zealand, and Taiwan, have far more intrusive apps from a privacy perspective, but that is overcome by a high level of trust in their governments and their responses to COVID-19.

Sadly, this is not the case in Hong Kong and the Leave Home Safe app is another milepost as to how little trust remains in the Hong Kong Government to perform its duties competently and lawfully. This has serious consequences. In the short term, low trust in the Government limits the effectiveness of the response to the pandemic, resulting in more hospitalizations and, potentially, deaths. Equally alarming, is that in the long run, low trust leaves the Government with fewer choices in how to execute any type of policy, meaning it will have to turn increasingly to punishment, intimidation, or coercion, which in turn further reinforces suspicion and distrust of government. And so, further down the downward spiral we go. If unstopped, the net effect will be cataclysmic for Hong Kong, as we know that high-trust countries are, in general, less corrupt, more prosperous, and more democratic than countries in which distrust prevails.

(Davyd Wong is a practising solicitor and a member of the Council of the Hong Kong Law Society. He can be contacted at www.davydwong.com. The opinions expressed here are his alone, and do not constitute professional advice of any kind.)

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