Translation Section Editors
Prof. Shou-Hsia Cheng, PhD
There is a legal basis for the Central Epidemic Command Center (CECC) to conduct outbreak investigations to control the spread of infectious disease and to comprehend the epidemic status. According to Article 26 of the Communicable Disease Control Act: “The central government authority shall develop the procedures for reporting communicable diseases and methods of outbreak investigations, and establish systems for surveillance, public warning, and preparing disease control resources. The implementation guidance shall be issued by the central government authority.” In addition, Article 2.1 of the Regulations of Implementing the Epidemic Surveillance and Public warning System for Communicable Diseases, a sub-law of the above-mentioned Act, states that the central government authorities should specify and implement the detailed rules of reporting communicable diseases, methods of specimen collection, outbreak investigations and prevention measures. It is clear that conducting outbreak investigations is one of the CECC’s power and responsibilities.
The formulation of public health policies by the government should be endorsed and cooperated by the general public so that the whole country can get through the epidemic. Article 36 of the Communicable Disease Control Act states that the public shall comply with the government’s epidemic prevention measures; Article 43.2 of the Communicable Disease Control Act states that patients or suspected patients with communicable diseases , once reported, shall not refuse, evade or interfere with government authority’s investigation and management mentioned in Article 43.1 of the Communicable Disease Control Act. Any confirmed or suspected cases who violates the regulations, such as refusing the outbreak investigation, can be penalized according to Article 67.1(3) of the Communicable Disease Control Act.
To prevent the spread of communicable diseases, disclosing outbreak investigation information by the government can raise the public’s awareness and prevent the public from visiting high-risk areas. Also, it can act as a notification to remind potential contacts to monitor their health states and enhance the public’s sense of security. In terms of the law, according to Article 7 of the Communicable Disease Control Act: “Government authorities shall conduct all investigations and implement effective prevention measures to avoid the outbreak of communicable diseases; when there are outbreaks or epidemics of communicable diseases, the authorities shall contain the disease promptly to prevent further spreading”. Therefore, the government can disclose the information of outbreak investigations if it is an effective approach to preventing the communicable disease from further spreading. Furthermore, according to Article 8.1 of < Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens >: “For an individual subjects to isolation or quarantine during the outbreak period who violates isolation or quarantine orders or intends to violate such orders, the Commander of the Central Epidemic Command Center may instruct personnel to take videos or photographs of the individual, publish his/her personal information, or conduct other necessary disease prevention measures or arrangements.” The Article 8.2 of the same law states “To prevent the spread of the disease, the same rules shall apply to patients with confirmed diagnoses of severe pneumonia with novel pathogens.” These regulations indicate that, given the purpose of preventing the spread of the disease, the CECC can disclose personal information collected from the outbreak investigations.
Fundamental Civil Rights
However, personal information collected during outbreak investigations falls in the category of privacy. It is protected by the Constitution and cannot be infringed by the government. In addition, if leaking personal information will cause stigmatization of specific groups (e.g. migrant workers) and lead to social exclusion and social divergence, or place confirmed cases or contacts under close scrutiny or being stigmatized, prohibiting them from seeking medical care or providing required information for the outbreak investigation such as detailed activities and locations in the past few days, thus will be to the disadvantage of disease prevention and infection control. Article 10 of the Communicable Disease Control Act states that government organizations shall not disclose the name, medical records, or medical history of patients or suspected patients with communicable diseases.
The Principle of Law
When the government intends to restrict the fundamental civil rights such as privacy with law, it should not violate Article 23 of the Constitution, which indicates the principle of legal reservation and the rule of proportionality. These rules and principles prevent people from being put at social and health risk due to improper disclosure of personal information. The principle of the legal reservation states that all policies should be based on laws. The rule of proportionality states that policies should be examined with the principles of necessity, adequacy and narrow proportionality. When the CECC decides to disclose personal information of confirmed cases, including their tracks, where they have been, or even their names and personal itinerary, it should consider whether such means meet the purpose of infection control, whether the infringement of human rights is minimized, and whether the proportionality between the infringement of human rights and the benefit of achieving the goal is reasonable.
In March, 2020, the Central Epidemics Command Center gave a response to whether to disclose the outbreak investigation information to the public or not. For confirmed cases whose traces and footprints cannot be well tracked, the government will disclose the investigation results in order to help the contacts of these cases get alerted and report their health status in time. However, for confirmed cases whose whereabouts can be well identified, the outbreak investigation information will not be disclosed to the public due to the imbalance between little social benefits and potential harms to the confirmed cases.
The government builds an electronic fence intelligence monitoring system with the support of the Quarantine System for Entry and Home Care Monitoring System of Infection Control and cooperates with telecom operators, so the locations of those who undergo home isolation or home quarantine can be monitored by phones. Such policy is mainly based on the laws as follows. First, Article 48.1 of the Communicable Disease Control Act indicates that “Government authorities, for the reason of case confirmation, may detain persons who have been in contact with patients affected by communicable diseases or who are suspected of being infected; when necessary, they may be ordered to move to a designated place for required activities such as examination, immunization, medication, restriction in designated areas, or isolation.” Second, Article 15 of the Personal Data Protection Act indicates that regarding the collection and processing personal data, when it is within the scope of legal duties, the government agency can ask citizens to provide their communication information such as mobile phones. Third, the proviso of Article 20.1(2) of the Personal Data Protection Act states that when there is "necessity for enhancing public interest", a non-government agency such as a telecom operator can track the location of persons who are being monitored.
First, the data of mobile phone tracking is within the private fields, which should be self-controlled and should not be intervened by others. It is also a communication record stated in Article 3.1 of the Communication Security and Surveillance Act. In principle, if a prosecutor want to review the records, the request should fulfill all the requirements of Article 11.1 of the Communication Security and Surveillance Act, including a communication surveillance warrant issued by a court for the investigation of a crime with a sentence of more than 3 years. Therefore, the data of mobile phone tracking is well-protected personal information and the government should consider the electronic monitoring system under the principle of proportionality. In addition, the "necessary approaches" in Article 48 of the Communicable Disease Control Act, and Article 7 of the Special Act on COVID-19 Prevention, Relief, and Restoration which states that "the Commander of the Central Epidemic Command Center may, for the need of disease prevention and control, implement necessary coping arrangements or measures" merit further considerations. For example, the scope of "necessity" in these laws, the extent of the government’s power, and whether people can foresee the government’s specific actions deserve more consideration.
Translation Associate Editor(s)
Ssu-Chi Cheng, Wen-Yi Lee
Yi-Yun Cheng, Yao-Chung Chang