tl;dr series

SERIES: TAIWAN'S PANDEMIC PREVENTION MEASURES

written by serena chen & charlotte lee

english translation by meng-fu chen

graphics by rebecca yu 

INTRODUCTION

The results of Taiwan's recent pandemic prevention policies are highly successful and globally recognized. Taiwan's experience from fighting the SARS (Severe Acute Respiratory Syndrome) pandemic back in 2003 served as a solid basis for their current pandemic-prevention policies. Thus, while continuously devoting efforts on preventing the spread of COVID-19, we should also reflect upon the flaws of current policies to become better prepared for new outbreaks in the future. This series will include six posts on the topic of Taiwan's home isolation policies, examining the social implications and legislative issues involved. We welcome our readers to share any thoughts you may have on the topic at hand!

WHAT ARE TAIWAN’S POLICIES FOR COMBATTING THE COVID-19 OUTBREAK? 

Before discussing the specific policies regarding home isolation, let's first put our focus on what the Taiwanese government has done to combat the general spread of COVID-19. In general, Taiwan's COVID-19 prevention policies are characterized by five main principles: transparent and publicized information, proper allocation of resources, timely border regulations, medical and virus-screening technologies and smart pandemic prevention measures in communities. The main focus of these few articles, home isolation, falls under the category of community pandemic prevention measures.

WHY SHOULD WE PAY ATTENTION TO THE HOME ISOLATION POLICIES?

According to the definitions published by the United States Center of Disease Control (USCDC), what the public vaguely refers to as “quarantine” actually has two different forms: "isolation" is specifically for people that actually have a positive diagnosis for the illness, and "quarantine" is for those who are not yet infected but are at risk of getting infected. The "home isolation policy" discussed at hand is for those in quarantine.

THE GLOBAL SCENE UNDER COVID-19 

Different countries have employed various quarantine policies to a different extent, depending on the severity of COVID-19 in their own country; cultural factors are also involved in the type of policies they have chosen to implement. For example, in the past few months, countries such as the US, some European countries (including the UK), Israel, Singapore, and New Zealand have imposed widespread restriction on both travel and the opening of businesses, which in combination is essentially a lockdown.

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DISPUTES ON THE LEGAL BASIS OF POLICY RESPONSES TO COVID-19

Back in mid-March, the Center of Disease Control (CDC) announced their policy to prohibit all students and teachers from high schools and below from going abroad, causing a backlash in public opinion. At the time, in Premier Su’s response to the public, he mentioned that the legal basis of this measure lies primarily in the <Communicable Disease Control Act>, and the <Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens> (abbreviated as <Special Act> from here on out), which was established specifically in response to COVID-19. In fact, these two acts are also the legal basis for multiple new counter-pandemic policies recently imposed, including the electronic fencing system used to monitor civilians in home isolation. Here, we’ll take a closer at what the discussions entail from a legal perspective.

Back in mid-March, the Center of Disease Control (CDC) announced their policy to prohibit all students and teachers from high schools and below from going abroad, causing a backlash in public opinion. At the time, in Premier Su’s response to the public, he mentioned that the legal basis of this measure lies primarily in the <Communicable Disease Control Act>, and the <Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens> (abbreviated as <Special Act> from here on out), which was established specifically in response to COVID-19. In fact, these two acts are also the legal basis for multiple new counter-pandemic policies recently imposed, including the electronic fencing system used to monitor civilians in home isolation. Here, we’ll take a closer at what the discussions entail from a legal perspective.

PERSPECTIVES ON THE ISSUE

Back in mid-March, the Center of Disease Control (CDC) announced their policy to prohibit all students and teachers from high schools and below from going abroad, causing a backlash in public opinion. At the time, in Premier Su’s response to the public, he mentioned that the legal basis of this measure lies primarily in the <Communicable Disease Control Act>, and the <Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens> (abbreviated as <Special Act> from here on out), which was established specifically in response to COVID-19. In fact, these two acts are also the legal basis for multiple new counter-pandemic policies recently imposed, including the electronic fencing system used to monitor civilians in home isolation. Here, we’ll take a closer at what the discussions entail from a legal perspective.

However, the one common belief for both viewpoints is that general regulations are a result of the unforeseeable nature of the pandemic and cannot be relied upon as a long term solution. To this day and time, as various policies (border restrictions, mobile monitoring and such) have already been well established, legislators should take on a more proactive role and propose new legislation or amendments to close out existing loopholes. For example, after the SARS incident (will be introduced in the fourth post), Article 48 of the <Communicable Disease Control Act> was amended to list “quarantine” as a specific means under the originally vague “necessary measures.” In conclusion, apart from constantly being one step ahead with pandemic-prevention policies, related legislations must also follow closely in order to build a well-rounded disease prevention system.    

In the first two posts, we introduced Taiwan’s policies to counter the COVID-19 pandemic and we discussed the policies from a legal perspective. Now, let’s focus on inspecting the status quo of Taiwan’s home isolation policies. 

CATEGORIES OF TAIWAN'S HOME ISOLATION POLICIES

Due to the evolving nature of the pandemic, government policies to counter COVID-19 have constantly been under revision, thus creating different versions of isolation policies and various terms such as “home isolation” and “home quarantine.”

According to the newest version of “CECC Measures for Following Up on Persons at Risk of Infection”, isolation policies are classified into three main categories: home isolation, home quarantine, and self-health management. Those who have had contact with confirmed cases undergo home isolation, those returning from foreign countries undergo home quarantine, and those with low risks of infection undergo self-health management. Different regulations are laid out for different policies: for example, people under home isolation and home quarantine are required to stay at home or at designated residences for a certain period of time, during which going outside is strictly forbidden.

HOME QUARANTINE AND BORDER CONTROL

As mentioned earlier, home quarantine is designated for citizens who have had a recent history of travelling overseas. Thus, this policy is closely connected to border control measures. Since mid-March, the Ministry of Foreign Affairs (MOFA) has imposed entry restrictions for foreigners coming into Taiwan; furthermore, all persons entering Taiwan need to first fill in required forms for the Entry Quarantine System, and subsequently undergo a 14-day home quarantine process. As other countries began to lift restrictions, MOFA has also begun to adjust entry restrictions from June (for example, allowing short-term business travellers to apply a shorter period for home quarantine), in response to the reopening of international business activities and interactions.

THE SITUATION IN OTHER COUNTRIES

Take the UK for example. The UK government announced regulations related to the lockdown back in March. According to the guidelines, civilians are only allowed out of their homes for one hour per day and are required to stay at home for the rest of the day. During early June, the UK government proposed new border control policies which orders all entering passengers to undergo a fourteen day home quarantine period (enactment of such policy came several months later than Taiwan and numerous other countries.) Now, as the situation de-escalates, the UK government has also decided to loosen restrictions on quarantine and travel, in part due to considerations that these policies may violate certain regulations on personal data protection. Starting from July 10th, passengers from designated countries (including Taiwan) can be exempted from serving the 14 day home quarantine.


Due to the nature of COVID-19, policies similar to home isolation are commonly found around the globe; however, we could still observe subtle differences between country to country. Apart from the severity of the pandemic in different countries, are there any other social, cultural, or political factors that may have caused these differences in the policies imposed? We welcome discussions in the comment section!

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Next, let’s discuss the specifics of the home isolation policy from a legal perspective. Most of you may have a general idea about the rights to the freedom of movement as provided in the constitution. How do we strike a balance between the infringement of personal freedom and the effectiveness of isolation policies?


This text will not focus on the specific technical legal concerns on the types and degree of freedom infringed upon by the isolation policies, but it will, instead, bring attention to the evolution of policies and laws related to Taiwan’s disease prevention measures. 

CONSTITUTIONAL COURT INTERPRETATION NO.690: COMPULSORY ISOLATION OF TAIPEI HOSPITAL HEPING BRANCH

Do you recall, from an earlier post in the series, the mention of Taiwan’s experience with fighting SARS back in 2003 and how that served as an important basis for establishing our current counter COVID-19 policies?
Constitutional Court Interpretation No. 690 is an important interpretation that came out of the legal conflicts surrounding the SARS outbreak prevention period. The topic of this interpretation is: are the “necessary measures” provided in Article 37, Paragraph 1 of the Communicable Disease Control Act, including compulsory quarantine, unconstitutional?


This point of conflict extended into other problems. For example, is the clarity of the law sufficient? Does it violate the principle of proportionality? Also, the underlying nature of quarantine itself is a restriction on personal freedom; according to the constitution, whether or not a person should be isolated is decided by the court. Compulsory quarantine lacks this process: does this violate the due process of law? 
 

CONSTITUTIONAL, BUT COMPETENT AUTHORITIES SHOULD REVIEW PANDEMIC PREVENTION LEGISLATION

The majority opinion surrounding this interpretation is that “necessary measures” include compulsory quarantine, and this measure is in compliance with the principles of clarity, proportionality, and the due process of law. Particularly, reasons for its compliance with the due process of law include the following: 


1. Pandemic prevention measures should be based on professional knowledge of medical treatment and public health; thus, for the purpose of prompt disease control, decisions made by the competent authority will be better than those made by the court. 


2. The purpose of compulsory quarantine is to prevent the spread of contagious diseases and to safeguard the life and health of citizens. This is unlike the nature of criminal punishment, which the constitution emphasizes on when discussing personal freedom; thus, the due process to follow would differ. (On this issue, Supreme Court Justice Tsong-Li Hsu and Justice Yu-Hsiu Hsu each published dissenting opinions in disagreement with the aforementioned arguments, which are worth reading. We encourage interested audiences to go take a look!)
The interpretation also explicitly mentioned how relevant legal articles should be improved upon. These include clearer regulations on the length and process of isolation, improving ways to seek legal remedy, and providing reasonable compensation to those who have undergone compulsory isolation. Even so, some continue to question the constitutionality of such a legal article, considering its many flaws.

  

PATH OF REVISION FOR COUNTER-PANDEMIC POLICIES

After the SARS pandemic and Constitutional Court Interpretation No. 690, Taiwan revised many of its legal and procedural provisions following the guidance of the Supreme Court justices. In 2014, the new Habeas Corpus Act further allowed citizens to petition the court for habeas corpus (in other words, ask the court to determine if the quarantine order was reasonable) after they’ve undergone compulsory isolation. This may be able to ease some conflicts surrounding the due process of law. In general, a clearer legal basis for isolation-related policies has been established in the <Communicable Diseases Act> and other related acts.


Though the home isolation policy for non-confirmed cases today is different from the compulsory isolation measures directed towards confirmed cases and the medical staff during the SARS period, it remains undeniable that Interpretation No. 690 has an important place in the history of disease prevention and isolation policies in Taiwan. 
 

WHAT IS THE DIGITAL FENCING SYSTEM

People undergoing home isolation or home quarantine will have their phone numbers integrated into the Digital Fencing Tracking System, established for pandemic prevention specifically, to track their real time positions and ensure that home isolation/quarantine is effectively enforced. The CDC provides cell phones for those who are not in possession of one.


Do you recall the cellular broadcast messages that many civilians received some time ago? This is related to the digital tracking technology that the government uses, dubbed “cellular tracking.” The system detects the electronic signals of cell phones through base stations, verifies the current position of the cell phone, then de-identifies these data and stores them in systems owned by communications service providers. These data are then reported to the government every ten minutes, and if an individual is found to be away from his/her designated area for two or more instances consecutively, an SMS message would be sent to the individual. Simultaneously, the detection would also alert officials of the health department, social department, or police department, followed by a personal visit made by the officials to the homes of civilians in potential breach of the isolation rules. 

THE DIFFERENCE BETWEEN CELLULAR-BASED TRACKING AND GPS TRACKING

This cellular-based tracking technology is fundamentally different from the Global Positioning System (GPS) we have in our phones. Cellular-based tracking relies on calculations of the distance between the phone and base stations; thus the error margin for positioning is far larger than that for GPS. According to statistics provided by Taipei City Councillor Chung Pei-Chun, out of the 8563 detected anomalies of Taipei’s digital fencing system that occured between February and June, 58% of them were problems in cell phone positioning, and only 77 cases were actual violations of isolation or quarantine regulations. However, the advantages of cellular tracking includes how there is a lesser degree of infringement on user data and privacy than when using GPS. Since infringement of privacy is often the greatest concern when it comes to the implementation of tracking technologies in many countries, cellular tracking is more desirable than the use of GPS where privacy is concerned.

POSSIBLE ALTERNATIVE: BLUETOOTH

Is there a technology that combines the advantages of using GPS and cellular tracking? The answer to this question may be one that we are all very familiar with already: bluetooth. Though most discussions about the application of bluetooth in pandemic prevention are for contact tracing, it could also be applicable to the home isolation policies in question.
In contrast to the positioning technologies that GPS and cellular tracing relies on, the primary function of bluetooth is determining the distance between two cell phones, thus making it very useful in tracing the contact history of infected cases. Another difference is the mode of data storage: the traditional centralized approach of data storage is replaced by decentralized storage when using bluetooth.


Decentralized storage is a major reason for why bluetooth is preferred by European countries, which have always made a significant emphasis on the protection of personal data. NGOs such as the Human Rights Watch have also pointed to  bluetooth as the technology that best provides precise positioning while also protecting personal data. Multiple academic institutions, along with the two tech giants Apple and Google, have begun to devote efforts into the development of related technologies. However, there have been examples like Singapore, who have developed tracing apps that use bluetooth but have proved to be inefficient.
Combining digital technology with pandemic prevention measures is a novel and interesting issue. In the next post, we will further discuss the relation between these technologies and privacy-related regulations. Before that, we’d like to hear you guys share your stories about digital tracking technologies you’ve encountered during the COVID-19 period, and any thoughts about issues that we’ve been talking about!   

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In mid-March, a ruling made by Israel’s Supreme Court stated: prior to an official mandate by law through the parliament, the government is not allowed to trace a civilian’s cell phone positioning data as a means for pandemic prevention. 


The reason for this ruling is because members of the cabinet authorized the Shin Bet (the Israeli government bureau in charge of national security) to track both confirmed COVID-19 cases and those under high infection risk by mobile data. This authorization was carried out in the form of an emergency act, without having been passed in the Knesset (Israel’s legislative branch). This measure imposed by the government received heavy criticism from human rights organizations in Israel. Prime Minister Benjamin Netanyahu took Taiwan’s example as a defense during a press conference, stating that similar policies have been imposed in Taiwan. The Knesset finally passed relevant legislation in early July. This example demonstrates how sensitive the issue of digital tracing is, and the degree of emphasis placed on privacy. Next, let’s take a look at what arguments have been laid out on the topic of employing digital tracking as a means for pandemic prevention. 

WHAT IS THE LEGAL BASIS OF THE DIGITAL FENCING SYSTEM?

Minister Tsai of the Ministry of Justice explained that the legal basis for the electronic fencing system is derived from regulations about improving public interest established in the <Communicable Disease Control Act> and the <Personal Data Protection Act>. Some scholars also believe that Article 7 of the <Communicable Disease Control Act> and <Special Act> for COVID-19 (the overarching guidelines we discussed earlier in the series) may serve as the legal basis for the digital fencing system. However, on the issue of digital tracing, these two articles lack clarity.


For example: the <Communication Security and Surveillance Act> states that policing agencies wishing to monitor means of communication for the purpose of collecting evidence must obtain permission from the court. Though the regulations of this act are not applicable to the digital fencing system, there should still be amendments for current laws or new laws proposed to regulate how the government obtains data from communications service providers in order to make the process justifiable by law - as with the circumstances in Israel. In short, the government should not rely on the vagueness of overarching guidelines solely for its convenience.

  

HOW SACRED IS THE RIGHT TO PRIVACY?

As technology advances, the question on the right to privacy has received widespread attention. For example, Taiwan has ensured that the right to privacy is protected in the constitution through various constitutional interpretations throughout the past few years. The EU’s General Data Protection Regulation (GDPR), which claims to be the strictest personal data protection law ever drafted, has also been enforced since 2018. However, it is important to emphasize that the right to privacy is not definite and non-negotiable. The extent of it should be decided based on existing conditions. For example, Article 8 of the European Convention on Human Rights (ECHR) states that countries should have the power to reasonably constrain people’s rights to privacy, for the purpose of protecting public security or health. However, even under these circumstances, these measures should still be legal, necessary, and in compliance to the principle of proportionality.


An additional aspect to the discussion on privacy involves how the data collected during the pandemic period should be dealt with after the pandemic period. The government should establish reasonable “withdrawal mechanisms” for the collected personal data in order to prevent the deliberate misuse and exploitation of such data and the infringement of personal privacy. For example, the Australian government plans to criminalize the unauthorized use of collected data - particularly for matters unrelated to pandemic prevention. 
This will be the last post for this series. We hope that our audience will have a more complete perspective on isolation policies and privacy after reading this series. If you have any views on related policies, we welcome you to share such opinions with us!


  

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