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KMID : 1011120210140020001
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Bioethics Policy Studies
2021 Volume.14 No. 2 p.1 ~ p.25
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Examination of the Principle of Proportionality for the COVID-19 Contact Tracing
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Park Mi-Jeong
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Abstract
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The contact tracing of COVID-19 in Korea is divided into “in-depth epidemiological investigation” which targets the infected patient and “contact investigation”, which gathers data from close contacts. Personal information and automatically collected location information directly from the patient were used for contact tracing. To justify the data collected through contact tracing and use of personal information, epidemiological investigations should be based on a special law called the “Infectious Disease Prevention Act”. Article 37 (2) of the Constitution should also be considered, as it provides conditional restriction of basic rights to be allowed only when national security, public order or public welfare are at stake. But it should also be considered, that there are boundaries to be upheld, due to its personal privacy and rights violation.
The purpose of this article is to analyze whether the COVID-19 contact tracing methods comply to the principle of proportionality declared by the Korean Constitution. The assessment was conducted considering three essential prerequisites for conforming to the Constitution, which are as follows, Format, Purpose, and Method. Legal format for information disclosure was assessed for Format prerequisites, Legitimacy of the request for information provision for Purposes prerequisites, and lastly, the least invasive means that balances the public good and private interests were analyzed for Method prerequisites.
The target of this study are the cases of infected people’s travel logs information disclosure by local governments, and the Central Disease Control Headquarters’s request for the list of the whole congregation of the member of “ShinCheonJi” denomination during the outbreak, and the “Itaewon” cluster’s outbreak using GPS data collected by telecommunication stations.
According to the analysis of the format requirements, the laws enforcing infectious disease prevention dictate that the subject of information disclosure should be limited to the head of the Ministry of Health and Welfare, and the Central Disease Control Headquarters. The Central Disease Control Headquarters discloses “repeated mass exposure locations” related to cluster outbreaks. Thus, the local governments are not empowered or allowed to disclose them. Administrative measures of local governments that prioritize the prevention and control of infectious diseases are subject to violation of personal privacy.
According to the analysis of purpose requirements, the list of the whole congregation of Shincheonji was requested in order to adequately respond to the super-spreading event of the virus. Considering the fact that investigation was able to be initiated meets the objective prerequisites.
According to the result of the method requirements analysis, the GPS data of the people associated with the Itaewon outbreak in Seoul was collected without the consent of the subjects. However, this particular case encompasses exceptional characteristics of administrative investigations, thus it is necessary to stipulate legitimate procedures for information provision and information processing within the infectious disease prevention Act. Contact tracing methods are comprised of two objectives, minimally invasive measures and prolific data utilization, which determines it to be intrinsically ambivalent. Thus, this study proposes an amendment to the provisions related to the Legislation of contact tracing in order to adjust the arbitrary and strained equilibrium that arises between Public health and Privacy when proceeding investigations.
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KEYWORD
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COVID-19, contact tracing, principle of proportionality, right to self-determination, privacy, cluster
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