How South Korea’s Legal Framework Helped Flatten the Coronavirus Curve, and Whether the U.S. can Follow.

By: Daniel Cermak

Introduction:

With Coronavirus concerns enveloping the entire world, halting the spread has become a global point of emphasis. With the emphasis on containment, there has also been

As of March 2, South Korea reported 3,730 cases of coronavirus nationwide, and more than half of all cases involved members of the Shincheonji Church of Jesus, a church described as “a fringe Christian group” or less eloquently, a cult.[1] According to former members of the group, church members would gather together tightly by sitting on the floor, glasses and face masks are banned,[2] and members attend gatherings even when sick.[3] Once cases of coronavirus were confirmed in the group, the infected were told to lie about being members of the church.[4]

South Korea managed to connect 60% of all coronavirus cases in the country back to the Shincheonji Church of Jesus as of March 17.[5] The ability to connect so many cases to the church speaks not only to the impact the church had on its spread across the country but also speaks to South Korea’s ability to “contact-trace” the virus, an extensive process enabled by legislation that allows the government to use cell phone records and credit cards to track the movements of coronavirus patients and publish those locations for use by the public.[6]

This article will discuss the legal methods South Korea has utilized to control coronavirus with great success compared to the rest of the globe,[7] discuss the possibility of implementing similar measures in the United States, and under what legal power those measures could be implemented.

The Infectious Disease Control and Prevention Act:

South Korea’s success in containing the virus involves a number of factors, but the country’s legal framework has played some role.[8] Following the country’s battle with the Middle Eastern Respiratory Syndrome (MERS), many felt the government was not transparent regarding who had the disease, where they went and what hospital treated them.[9] This lack of transparency and failure to help citizens track the disease led to a shift in policy within the South Korean government, and the strengthening of the infectious Disease Control and Prevention Act.[10]

The IDCP Act was given in teeth in 2015 following the government’s bungling of the MERS outbreak and provides the South Korean government with significantly more power during epidemics.[11] The act gives a great deal of discretion to the Minister of Health and Welfare to take the necessary action, and it is not different in the most relevant section of the act for our purposes: “Chapter VII: Measures to Prevent the Spread of Infectious Diseases.”[12] The section grants the minister broad powers to limit the spread, including preparing medical personnel, managing medical equipment stockpiles and “other matters deemed necessary” by the minister.[13] The act also places responsibility on every Korean citizen, outlawing making “a false statement, present[ing] false materials, or intentionally omit[ting] or conceal[ing] any fact to medical personnel” regarding the virus.[14]

In terms of controlling the spread of the virus, the act provides for different guidelines depending on the type of virus, and though it is not specified, coronavirus is likely to be considered a “group 3 disease” which requires “continuous surveillance and control measures against their outbreak.”[15] The most relevant examples of “continuous surveillance” appear in a post-MERS amendment to the IDCP Act: article 76-2(2).[16] This section allows for the Minister of Health and Welfare to request police officers at any level to provide location information of those infected or “likely to be infected” through the relevant person’s or persons’ cellular carrier, as well as credit card data, among other more readily available information like CCTV footage and public-transit records.[17]

The legal framework allowing for this to take place has seemed to be effective from a containment standpoint but also from a knowledge standpoint, with contact tracing becoming fairly accurate. For example, the app used to publish location information of confirmed cases provided such information as the exact movie theater seats reserved by “patient 12” and the train he took to head home.[18] This level of detail, of course, begs the question of how to balance the innate concerns involved with the government mandating this kind of tracking to ordinary citizens who did nothing wrong but fall victim to a global pandemic and the importance of flattening the curve.[19]

South Korean Model of Contact-Tracing Applied in the United States: Is it Legal?

Because of unprecedented threat coronavirus offers, the U.S. government has great power to act to prevent the spread, even if the action violates the right to privacy. Given the circumstances and the fact that the measures are already being considered by the United States,[20] any question to their legality would be brought post-implementation.

While some want privacy rights to be unlimited, the current laws not only don’t allow for that, but they specifically involve an exception to privacy rights when the public health is concerned.[21]  The right to privacy, through a patchwork analysis of the Bill of Rights by the Supreme Court in Griswold v. Connecticut, but the right has generally been limited in scope over the years.[22] The strength in limiting the right to privacy comes from the states, with only a handful of states even recognizing a right to privacy.[23] The States also explicitly have the power to implement quarantines, but they “must be completed in "the least restrictive to the text of the note means necessary so as to not infringe upon the federal government's powers under the Commerce Clause.”[24]

From a medical privacy standpoint, the Department of Health and Human Services released guidance on how the Privacy Rule of the Health Insurance Portability and Accountability of 1996 (HIPAA) will work during the outbreak.[25] Notably, for our purposes, the new rule change from HHS allows for HIPAA “covered entities” (CE’s) to disclose, without the patient’s permission, the coronavirus case “to anyone who is in a position to prevent or reduce a serious and imminent threat” which includes family members, friends, and law enforcement.[26]

The answer to the legality of utilizing South Korean contact-tracing here the United States is difficult, if not impossible to answer. South Korea explicitly allows the action to be taken during epidemic situations, whereas the United States, by design, has a number of different actions that can take place, with differences existing between state and federal governments as well as between state governments.[27] This does not mean that the United States lacks the power to implement similar measures through other means, like the National Emergencies Act or the Stafford Act, but the system makes the process of implementing them more nebulous.[28]

Conclusion

South Korea’s legislation surrounding contact-tracing allowed for an efficient and effective response to coronavirus. In the United States, while similar measures are likely within the power of the States and the Federal Executive branch, the legal organization of those measures could make implementation slower.

 #SouthKorea #Covid19 #Coronavirus #InternationalLaw

[1] Choe Sang-Hun, Shadowy Church is at Center of Coronavirus Outbreak in South Korea, New York Times (Feb. 21, 2020), https://www.nytimes.com/2020/02/21/world/asia/south-korea-coronavirus-shincheonji.html (“As the country’s infection numbers soar, most cases have been connected to the Shincheonji Church of Jesus, which mainstream churches consider a cult.”).

[2] South Korea’s mask usage is widespread, with 89% of the population stating that they wore a mask either before and after coronavirus started or after coronavirus began; Comparison of Face Mask Use Before and After the Coronavirus (COVID-19) Outbreak in South Korea as of February 2020, Statista, (Mar. 20, 2020), https://www.statista.com/statistics/1103501/south-korea-mask-use-before-after-covid-19/.

[3] See Sang-Hun supra note 1.

[4] Id.

[5] Dennis Normile, Coronavirus Cases have Dropped Sharply in South Korea. What’s the Secret to its Success? ScienceMag.org (Mar. 17, 2020), https://www.sciencemag.org/news/2020/03/coronavirus-cases-have-dropped-sharply-south-korea-whats-secret-its-success

[6] Eun-Young Jeong, South Korea Tracks Virus Patients’ Travels—and Publishes Them Online, The Wall Street Journal (Feb. 16, 2020), https://www.wsj.com/articles/south-korea-tracks-virus-patients-travelsand-publishes-them-online-11581858000?mod=article_inline.

[7] Chia-Yi Hou, How South Korea is Handling the Coronavirus Outbreak Better than Other Countries, The Hill (Mar. 13, 2020), https://thehill.com/changing-america/well-being/prevention-cures/487465-how-south-korea-is-handling-the-coronavirus.

[8] See generally Brian Kim Lessons for America: How South Korean Authorities Used Law to Fight the Coronavirus, Lawfare (Mar. 16, 2020), https://www.lawfareblog.com/lessons-america-how-south-korean-authorities-used-law-fight-coronavirus.

[9] Alastair Gale, South Korea MERS Outbreak is Over, Government Says, Wall Street Journal

[10] Gam-yeomjeung gwanli mich yebangbeob [Infections Disease Control and Prevention Act],

[11] Cheonsoo Kim, Legal Issues in Quarantine and Isolation for Control of Emerging Infectious Diseases, 49(1) J Prev Med Public Health, abstract (2016).

[12] Infectious Disease Control and Prevention Act arts. 34-48.

[13] Id. at arts. 34 & 35.

[14] Id. at art. 35-2.

[15] South Korea: Legal Responses to Health Emergencies, Library of Congress (June 6, 2015), https://www.loc.gov/law/help/health-emergencies/southkorea.php.

[16] Infectious Disease Control and Prevention Act at art. 76-2(2).

[17]See Id.; see also Jeong, supra note 6.

[18] Jeong, supra note 6.

[19] See id. (quoting one professor warning against the use of this kind of data, while another describes the use of such data as “exciting”).

[20] James Marson, Catherine Stupp & Drew Hinshaw, U.S. and Europe Turn to Phone-Tracking Strategies to Slow Spread of Coronavirus, Wall Street Journal (Apr. 3, 2020), https://www.wsj.com/articles/u-s-and-europe-turn-to-phone-tracking-strategies-to-halt-spread-of-coronavirus-11585906203?mod=searchresults&page=1&pos=7

[21] Natalie Novak, Privacy in Public Health Crisis: A Question of Culture, 27 Ann. Health L. Advance Directive 91, 93 (2017).

[22] Id.; David Helscher, Griswold v. Connecticut and the Unenumerated Right of Privacy, 15 N. Ill. U. L. Rev. 33, 58 (1994).

[23] Novak, supra note 21 at 96.

[24] Id. at 97.

[25] HHS Addresses HIPAA Privacy and COVID-19, Westlaw Practical Law (Mar. 3, 2020), https://1.next.westlaw.com/w-024-2904?isplcus=true&transitionType=Default&contextData=(sc.Default)&firstPage=true&fromAnonymous=true&bhcp=1

[26] Id.

[27] Kim, supra note 11.

[28] Id.