New York and New Jersey release “COVID Alert NY” and “COVID Alert NJ,” apps designed to alert their users when they have been exposed to someone who tested positive for COVID-19. These apps follow those released in Pennsylvania and Delaware and are soon to be joined by Connecticut. The states hope to enhance their contact tracing efforts, but what about privacy?

According to New Jersey Governor Murphy,

The app is free and secure, and your identity, personally identifying information, and location will never be collected. The more phones that have the app, the better we can fight this pandemic.

Larry Schwartz, a former high-ranking aid to Governor Cuomo, explains privacy is achieved “not through location services tied to smartphones but through the device’s Bluetooth proximity detection.” More specifically, the apps use the Exposure Notification System technology developed by Google and Apple. By using Bluetooth instead of GPS, location tracking of individuals is not necessary and users can turn it off at any time.

According to state officials, the COVID Alert apps will notify users if they have been in “close contact” (within six feet for at least 10 minutes) with someone who has tested positive for COVID-19. In order for the apps to work between users in close contact, a few things have to happen.

First, both users must have downloaded the app on their mobile devices and opted-in to receive “Exposure Notifications.” For COVID Alert NY and NJ, the apps are free and available to anyone 18 or older who lives, works, or attends college in New York or New Jersey, and can be downloaded in multiple languages from the Google Play Store or Apple App Store. As with all apps, users should read the app’s privacy statement – here is New Jersey’s privacy statement.

Second, one of the users would need to have tested positive for COVID-19 and cooperated with the local health department by agreeing to anonymously enter a code into the user’s app.

Third, when the two users are in close contact, as described above, their devices will exchange codes via Bluetooth. Using Bluetooth Low Energy technology, a device can detect when another phone with the same app is within six feet. If a code matches with a list of codes associated with positive COVID-19 app users, the user will get an “Exposure Alert” together with recommendations on next steps to stay safe and prevent community spread like self-quarantining and getting tested.

With reports of data breaches and intrusive government surveillance of citizens, it is no wonder New York and New Jersey state officials are touting COVID Alert’s attention to privacy. However, app users are permitted to do a “COVID Check-In” and enter any symptoms they are having. As I write this post, there were 15,561 check-ins today, with 97% percent feeling good. When Checking-In, users are reminded that the app does not reveal the user’s identity, but the information, which could include race, gender, and ethnicity, can be useful for public health action. Users also are reminded that a record is kept of symptoms entered into the app for future reference.

According to reports, the app cost $700,000 to develop, a cost reportedly paid for by the Bloomberg Foundation. It remains to be seen whether the app will serve its intended purpose and will keep user data private and secure.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.