The Central Epidemic Command Center (CECC) has said that the policy to flag National Health Insurance (NHI) card data of people in high risk groups in Taipei’s Wanhua District (萬華) is necessary for medical institutions to obtain relevant information in real time so that they can quickly plan contingency measures. This move could result in 600,000 people falling under surveillance.
All such data were to be deleted on May 29. If the COVID-19 pandemic continues, there is a chance that other similar measures could be taken, so it is necessary to consider the legal foundation for such measures.
According to Article 2, Paragraph 1 of the Personal Data Protection Act (個人資料保護法), a person’s medical records, healthcare data, sex life, records of physical examination, data concerning social activities and so on are personal and subject to protection under the act.
Article 5 stipulates that the “collection, processing and use of personal data shall be carried out in a way that respects the data subject’s rights and interest, in an honest and good-faith manner, shall not exceed the necessary scope of specific purposes, and shall have legitimate and reasonable connections with the purposes of collection.”
It is therefore necessary that collection and use of personal data follow regulations.
According to Article 8, Paragraph 1 of the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens (嚴重特殊傳染性肺炎防治及紓困振興特別條例), if “an individual subject to isolation or quarantine during the disease prevention period violates isolation or quarantine orders or intends to violate such orders, the Commander of the Central Epidemic Command Center may instruct personnel to record videos or photographs of the individual’s violation, publish their personal data, or conduct other necessary disease prevention measures or actions.”
This might be the legal basis for flagging and monitoring an individual’s NHI card.
The scope of this authorization to infringe on personal data is so wide that it is equivalent to blanket authority.
However, it must be noted that the provision is limited to those who are subject to isolation or quarantine orders. Therefore, if it is assumed that the so-called high-risk groups currently under surveillance make up 600,000 people, a large part of them are not subject to an isolation or quarantine order.
The policy is a clear contravention of the authority provided by the provision.
This flagging might seem to be a proactive measure to deal with the pandemic, but the risk of it causing discrimination or even denial of medical treatment contravenes the principle of rational nexus, or the logical relation between an action and effect.
In particular, if mobile phone companies are asked to provide the locations of members of high-risk groups without a court order, that would lead to concerns and worries about the government acting like a police state.
In response to these questions, the CECC would surely prioritize urgent pandemic control needs, and justify the blanket contingency measures authorized by Article 7 of the Special Act for Prevention, Relief and Revitalization Measures for Severe Pneumonia with Novel Pathogens, but that only highlights the tension between epidemic control and human rights.
Therefore, to prevent similar emergency measures from being questioned in the future, it is necessary for legislators to classify and clarify authorization norms.
Wu Ching-chin is an associate law professor at Aletheia University and director of the university’s Research Center for Criminal Law.
Translated by Lin Lee-kai
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