Big Brother Watch report suggests thermal screening tools in pandemic may have been unlawful
The scientific evidence to support the use of thermal screening to reduce the transmission of Covid-19 during the pandemic was very weak or inconclusive.
The claims come from a new legal opinion commissioned by UK-based non-profit Big Brother Watch and compiled by barrister Schona Jolly KC, a specialist in equality, human rights and technology.
In particular, quoting a 2020 article by Margaret McCartney, GP, and Carl Henegan, Professor of Evidence-Based Medicine, the Big Brother Watch’s legal opinion says infrared screening for temperature “results in large numbers of false positives, either offering false reassurance or unnecessary alarm – and potential exclusion of the person from work or leisure activities.”
Additionally, the report, shared exclusively with Biometric Update ahead of publication, warns organizations to be “wary of the legal implications of thermal screening, particularly in the data protection context.”
For instance, while it would seem uncontroversial that a person’s temperature is information relating to them, thermal screening devices do not store information about a person’s identity.
“However, very often, the person to whom the temperature relates will be identifiable via other means – for example, the person operating a temperature gun will know that the temperature flashing up on their screen relates to the person whose forehead they just directed the device towards,” reads the document.
“Accordingly, in our opinion, an individual’s temperature reading will normally constitute their ‘personal data’ within the meaning of Article 4(1) GDPR.”
The legal opinion, which builds on the non-profit’s campaign called ‘Stop Thermal Surveillance,‘ also calls for “real caution” concerning deploying automated processing of special categories of personal data, even in the context of an urgent healthcare crisis such as the Covid-19 pandemic.
“During the pandemic, we saw a huge increase in thermal screening for entrance to workplaces, schools, transport hubs, and leisure activities,” says Madeleine Stone, legal and policy officer at Big Brother Watch.
“We were concerned that this collection of sensitive biometric data, which can be extremely revealing, was being undertaken without proper consideration for data protection or equality laws.”
Stone also tells Biometric Update that although this was a response to the Covid-19 pandemic, the assessment has relevance to the lawfulness of thermal surveillance more broadly and potential future pandemics.
The report suggests that while many organizations have suspended thermal screening after the removal of pandemic restrictions in the UK, “a cursory glance online shows the technology is still being sold and the prospect of intermittent reintroduction of such screening, potentially at short notice again, remains live.”
According to Silkie Carlo, Big Brother Watch’s director, the rise of thermal scanners during the pandemic expanded mass biosurveillance and pervasive, inaccurate monitoring in the UK that benefitted surveillance companies’ profits, not public health.
“In many cases, shops, schools and employers made thermal scans mandatory in absence of a solid evidence base and therefore, as our legal advice confirms, likely in breach of people’s data protection rights,” Carlo tells Biometric Update.
The legal opinion concludes by warning that organizations continuing to use such screening face the risk of being in breach of the GDPR, as shown above and, if certain circumstances apply, the Equality Act 2010.
“Public authorities may also face some risk in relation to an interference with the right to a private life and the right to be protected from discrimination, enshrined within Articles 8 and 14 of the European Convention on Human Rights, although we consider this is less likely to arise in practice,” adds the report.
Case in point, Carlo said this “biosecurity theater” was not only a public health risk but a serious erosion of privacy, forcing people to exchange body data for access to basic services.
“We also heard from women who felt that their menstrual cycles or menopause symptoms were impacting these unwanted thermal scans, raising the prospects of discriminatory impacts,” she explains.
Overall, Carlo says the legal opinion provides an expert benchmark analysis confirming that thermal scanning engages personal data rights and that its use requires further evidence as well as safeguards.
“[It] is an important contribution to the growing field of biosurveillance, informing potential operators of thermal scans and privacy advocates alike of the risks and legal implications.”
The Big Brother Watch’s legal opinion comes weeks after the non-profit published a separate report scrutinizing biometric data collection for advertising personalization.