Contact Tracing Apps Using Bluetooth Technology: Data Privacy Concerns and Potential Patent Infringement Claims

2020 has surely been a year for the books amidst a global pandemic and complete chaos. While most of us have spent a good portion of the year adjusting to the new way of remote living and baking sourdough loafs and banana bread, big tech giants, Apple and Google, have jumped on the creation of novel cellphone-based contact tracing systems — an attempt to help curb the spread of COVID-19.

Governments and other health agencies across the world have scurried to create and implement contact tracing systems to track the spread of the virus. Several East Asian countries, including China and South Korea, have relied on direct geolocation via cellphone networks to identify and isolate individuals who may have potentially been exposed. However, these types of systems implicate issues of data sovereignty and privacy that would receive far greater pushback if implemented in Europe and the US. Apple and Google have attempted to evade these contentious issues by developing a contact tracing application using Bluetooth technology. This Exposure Notification system, announced on April 10, 2020, sends out a beacon that includes a random string of numbers via Bluetooth (only when enabled on each device) which other Bluetooth enabled devices will simultaneously listen for while broadcasting beacons of their own. In order to further ensure the anonymity of the device-user’s identity and personal information, this Bluetooth identifier will change approximately every 10–20 minutes. When a device-user has been positively diagnosed with COVID-19 and it is voluntarily reported, their beacons will be marked as a part of the positive diagnosis list — although the user’s identity will not be shared with anyone else, including Apple and Google.

While Apple and Google have taken several steps in the development of this technology to ensure the privacy of user information, there continues to be skepticism from the public. Nearly 60% of Americans show a lack of confidence in these new applications — which would significantly weaken its effective deployment since the application exclusively relies on the self-reporting of a positive diagnosis. The lack of federal consensus and regulation protecting data privacy further exacerbates this problem.

The effective release and use of contact tracing apps — which may be a way to quickly contain the outbreak — may be further hindered by patent disputes. Blyncsy, a Salt Lake City-based software company that helps cities collect and analyze mobility data, holds three patents related to contact tracing and “has sent claims seeking the equivalent of $1 per resident to states that have released or plan to release contact tracing apps.” One patent in particular specifies its technology for use in tracking the spread of a contagion using Bluetooth technology, among others such as Wi-Fi and cellular signals.

Shortly after Apple and Google made their announcement in April, Blyncsy launched an online portal through which a license for use of its technology could be requested. Blyncsy claims that Apple’s and Google’s jointly-created Bluetooth-based contact tracing app infringes on its patent. However, many patent experts believe that Blyncsy’s claim is unlikely to prevail. They reason that the breadth of Blyncsy’s patent is so wide that it would cover any type of contact tracing technology that involved a smartphone — leading to extensive forthcoming challenges of the validity of their original patent at the U.S. Patent and Trademark Office.

Nonetheless, pending patent litigation related to these contact tracing applications could further delay their deployment and impinge on their effectiveness to curb the spread of COVID-19. It is unclear at the moment how big tech giants Apple and Google will respond to potential patent fights over this technology, but a patent fight could certainly dissuade government agencies from implementing these applications — especially since the actual effectiveness of this technology is unknown due to the fact that a majority of the public is still wary about privacy concerns. Blyncsy’s CEO, Mark Pittman, states that he does not intend to prevent the use of this technology in new applications, but that the company only wishes to obtain the proper compensation for Apple’s and Google’s, and other state agencies’, use of its patented technology and intellectual property.

Pittman, however, has indicated that he does not wish to pursue patent infringement claims against Apple and Google at the moment. He states, “It goes back to the revolution. It really brings up those vibes of the king will take what he wants and the public be damned.”