Delivered in Parliament on 2 February 2021
I have some queries and concerns on the Bill as regards Part 3 on personal contact tracing data.
First, it seems to me that the furore about the use of Trace Together data could have been avoided if the government had been clear from the start that the police would be using its powers to access the data. Instead, blanket assurances were given by several Ministers that the TT data would only be used for contact tracing in COVID-19 cases. These blanket assurances were given from at least mid-2020. Minister Vivian Balakrishnan told the House last month that he had forgotten about the Criminal Procedure Code when he gave his assurances, and had sleepless nights thereafter. But the bigger question is: for all these months, why did no one in the government step forward to correct the misrepresentation that Trace Together was fully ring-fenced for COVID tracing?
Second, on why police would need TT data for criminal investigations, I have some scepticism. First, the TT data is likely to be incomplete and patchy. As pointed out by the Leader of the Opposition, people can and do turn off the bluetooth functions on their phones. Those using TT Tokens may also not carry them around all the time. The TT system’s proximity data may have some technical limitations as to distance and time, which may make records incomplete.
Second, it should be pointed out that some countries like Australia have chosen not to allow their law enforcement agencies to access information from COVID-19 contact tracing schemes for other investigations. Even speaking as someone who is generally supportive of law enforcement, I believe it is important for the government to make a convincing case for TT use by elaborating on possible scenarios, so that we can understand why TT may be pivotal to solving certain crimes. Earlier in his speech, Minister Vivian Balakrishnan gave the example of the kidnapping of a child. Does he have other scenarios to share?
Third, the Bill limits police use of TT data to seven categories of serious crimes. When the seven categories were announced last month, it was clear to me at least that the government was making serious efforts to scope down its powers. On the face of the offence categories, most can agree that they are grave offences which the public would want the police to solve. The seven categories of offences are now listed in the Seventh Schedule of the Bill. The Bill makes clear that the Seventh Schedule cannot be amended by subsidiary legislation but only through amending the main Act in Parliament. This will ensure that MPs and the public can scrutinise any change before it is law.
However, how watertight are the categories? I was expecting to see in the Seventh Schedule a listing of the exact penal provisions being contemplated, such as precisely which sections of which laws are included. However, the Seventh Schedule describes the offence categories in less precise terms. This may lead to some ambiguity and uncertainty in application. For instance, category 7 is listed as “any offence involving serious sexual assault such as rape or sexual assault by penetration”. The use of the phrase “such as” means that rape and sexual assault by penetration are mere examples and not exhaustive of the category of serious sexual assault. Would this category include scenarios where the sexual assault did not involve penetration but involved, say, sexual assault of a mentally disabled victim? Many would regard
sexual assault of a mentally disabled victim as serious and, in fact, TT data might be pivotal in such cases due to the victim’s reduced ability to assist police investigations. Another example of potential ambiguity is the offence of rioting. Rioting is defined under the Penal Code as a situation when there is an unlawful assembly of 5 or more persons and one member uses force or violence to pursue a common object of the assembly. If one looks at the Seventh Schedule at category 3, it seems to me that some cases of rioting may be included but not others, as it all depends on whether the injuries to the victim are of a life-threatening nature or not. Given the importance of proper classification, who will be the gatekeeper to certify whether or not a crime incident falls within the Seventh Schedule? It should not be left to the investigator alone.
My fourth point relates to from whom the police will extract TT data. The Bill makes clear that the police will order the production of the data, so there is no need to seek consent from the person having the data. Referring to the Parliamentary answer given by MHA to MP Christopher de Souza on 4 January, MOS Desmond Tan had said that TT data would not be extracted from suspects, but only from witnesses. Could the Minister clarify the precise basis for distinguishing the two? As for suspects, MOS Tan had said that TT data would not be extracted from suspects “for the purpose of security”. What are these security concerns?
Finally, in the light of the revelation that the police will use TT data, several defence counsel have asked me whether suspects, too, will be able to access TT data in any given case, as it could be exculpatory i.e. de-link the suspect from the crime. If the police will be able to use TT data to incriminate the suspect, then, in all fairness, the TT data should be available to the defence as well. To this end, we understand that TT data on devices is transient, as it is encrypted and stored for only 25 days, after which it is automatically deleted. Defence counsel often come onto the case some weeks after the arrest. How does the government intend to handle this issue of justice and fairness?
Sir, as mentioned by the Leader of the Opposition earlier, the Workers’ Party is prepared to support the Bill. However, we need answers to the questions we have posed.