To control the COVID-19 pandemic during the New Year holiday, the Ministry of Health and Welfare launched Skynet — a smartphone-based GPS tracking system to enforce quarantine or health management restrictions — and used it to catch people who breached the guidelines by going to a year-end concert by rock band Mayday.
As the system shares its name with China’s massive surveillance network, people are worried whether it monitors everyone in Taiwan. In reaction, the ministry immediately changed the name to Electronic Fence 2.0 and insisted that its implementation is legally sound.
However, the question is if the ministry’s authorization based on the Communicable Disease Control Act (傳染病防治法) is clear enough. According to Article 44, the ministry may order mandatory treatment, isolation or other necessary means to curb the spread of an infectious disease.
The Central Epidemic Command Center (CECC) implemented five measures based on the article: health surveying, tracking, self-management and self-observation, as well as home isolation.
However, as the number of people under restrictions increases, the conventional ways of monitoring — visiting people at home or calling them by telephone — have become inadequate to meet the needs of the developing situation and must be assisted by technology.
According to the law, those who are subject to electronic surveillance can be divided into two categories. The first category is regulated in the Sexual Assault Crime Prevention Act (性侵害犯罪防治法), which allows monitoring of an offender on parole or probation in the implementation of their sentence after obtaining permission by a prosecutor. The second category is regulated in the Code of Criminal Procedure (刑事訴訟法), which allows monitoring to prevent a defendant from fleeing after being granted suspension of detention, and requires permission by a court.
These types of monitoring are based on nonstop GPS tracking.
However, the intensive monitoring applied in criminal law cannot be used for the prevention and control of a pandemic, as people under quarantine are neither defendants nor prisoners. Therefore, only base stations operated by Taiwan’s telecoms can be used to track smartphone signals to monitor if a person contravenes the guidelines.
This kind of tracking provides only information about whether the monitored person is moving about without permission, but it does not allow for an immediate, accurate localization of the phone’s owner.
The new system marks a change from passive to active monitoring, as it obtains data from base stations around the nation and monitors whether a person under quarantine or self-health management enters a specific area, for example where Mayday holds a concert.
Although it does not provide continuous monitoring, it allows for accurate tracking similar to a GPS-based system, raising doubts as to whether it contravenes the principle of proportionality.
Even though the ministry and the CECC are authorized to adopt pandemic prevention measures, electronic monitoring is not regulated by the Communicable Disease Control Act, or 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).
This could lead to arbitrary interpretation and decisions that could contravene human rights.
Therefore, legislators must introduce legal amendments, stipulating that data obtained for pandemic prevention cannot be used for other purposes, as well as the data retention period.
Wu Ching-chin is an associate law professor at Aletheia University and the director of the university’s Research Center for Criminal Law.
Translated by Lin Lee-kai
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