No time to waste

It’s late afternoon on Easter Saturday. The coronavirus lockdown has already brought everyday life to a halt across Europe. The Dutch Ministry of Health suddenly announces a high-speed tendering process, calling on entities to submit proposals for a contact-tracing app. The goal of the app will be to track and slow the spread of the coronavirus in the Netherlands. It’s a tall order to fill, and the deadline is only three days away.

For the past 36 hours, Loyens & Loeff had already been working as part of the PrivateTracer initiative to develop just such an app. Other partners in the initiative include Odyssey, Microsoft, Milvum and the Municipality of The Hague. Understanding the urgency of the situation, the Executive Board at Loyens & Loeff had immediately approved a pro bono request to provide legal expertise to this public-private joint venture. A multidisciplinary team of specialists from across the firm contributed their knowledge to ensure the app would be viable and safe from a legal standpoint. With the new call for tenders, they had to move swiftly. First, they would need to quickly establish a legal entity to submit their application.

On Easter Sunday, Martijn Schoonewille, a member of the Digital Economy Group at Loyens & Loeff, called his colleague and fellow Digital Economy Group member Freek Hilberdink. ‘I asked Freek, “How quickly can we incorporate a foundation?’” recalls Martijn. ‘He said, “Pretty quickly.”’ By 11 o’clock the following evening, Freek had orchestrated the establishment of a new, non-profit foundation, called Stichting Private Tracer.

One of the main challenges facing the team was ensuring the app would meet the strict requirements of privacy law. ‘In the context of COVID-19, an app like this was bound to have some serious privacy implications’, recalls Nina Orlić, a Digital Economy Group member specialising in privacy law.

To ensure the development process would be as efficient as possible, the team had to take every possible obstacle into consideration. Another topic they examined was whether the app could be considered a medical device under Dutch law, making it subject to further regulatory requirements. ‘We were racing against the clock, and the last thing we wanted was to run into any unexpected issues down the line. We knew we needed to account for every possibility’, says Digital Economy Group member Kim Lucassen, who specialises in pharmaceutical law and data protection.

With no time to waste, Kim, Nina, Freek, Martijn and thirteen of their colleagues at Loyens & Loeff would spend the next week working up to 18 hours a day, to help get the PrivateTracer app ready for the fight against COVID-19.

Joint venture 3.0

Incorporating a new foundation and meeting the requirements for a strict government tendering process are complex legal tasks, even under normal circumstances. Now working from home, during a nationwide lockdown, the team at Loyens & Loeff had a unique set of challenges to overcome. To meet the strict deadlines, it would take teamwork, creativity and technology. ‘We could never have done it without that level of collaboration, both internally and among all members and supporters of the PrivateTracer initiative’, says Martijn.

Within two days of submitting its proposal for a contact-tracing app, PrivateTracer was selected by the Dutch government along with seven other applicants to take part in a hackathon. Ultimately, the Ministry of Health chose to abandon the tendering process, although many of the ideas originating from the hackathon were later incorporated into the official COVID-19 tracking app launched by the Dutch government on 17 August.

For the team at Loyens & Loeff, contributing to the PrivateTracer initiative was nevertheless a powerful opportunity to learn and explore new ways of working. The team relied on unconventional approaches and high-speed technologies to get things done quickly. ‘There were so many parties involved in the initiative that working face to face would have been nearly impossible, or at least would have taken a lot longer’, says Nina.

‘What really felt comfortable was the cooperation and using the skill-sets we have and the collective experience to cooperate in this new way’, says Martijn. ‘It was basically a “joint venture 3.0”. And I think this will be a new way of working if we look at the digital economy going forward.’

No room for error

Looking back, the legal experts at Loyens & Loeff will remember this as a once-in-a-lifetime project. The expertise contributed to developing the PrivateTracer app would later serve as a guideline for the final app, which the Dutch government is now releasing to the public.

‘There was a lot of motivation for us and the technical teams to get things right’, says Nina. ‘There’s no room for error in general in our business, but with something like this, the margin for error is even less.’

‘This was another good example of how our work is really “touchable,”’ says Freek. ‘Knowing that you could actually have an app on your phone in the future gave a lot of energy. And it was great that we were all working together to achieve that.’

‘It was inspiring to be a part of a group of entities, including competitors, who look at technology not as a foe, but as a friend... as something that can make society better’, says Nina. ‘Ultimately the goal was to benefit everybody.’

‘I am very proud of the fact that we were able to contribute to a project like this’, says Kim. ‘It’s always great when you have an opportunity to work together on something that has so much complexity, but also has such a tangible benefit.’

Looking back, Martijn says, ‘This was a good exercise in pulling a team together and seeing the energy people have to offer. Working on this pro bono was an extra. This is really what it’s about when we say that we are a “people-centred” firm. It was really putting our mission statement into action.’