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So, when the authorities called on gay club goers to voluntarily test for COVID-19, they weren't asking for merely a health check. They were threatening the person's social construct that he had built up over several decades. In other words, they were threatening a forced coming out.
To understand the threat perception better, this is how intrusive Korean authorities would get to trace all those potentially infected by the virus. According to a Pulse article dated May 12, 2020, "Seoul City government has secured a list of 5,517 people that visited five clubs and bars in the multicultural area Itaewon from April 24 to May 6. Of them, the city has made direct calls to 2,405 people and completed inquiry. Also, of 3,112 people that the city failed to reach by phone, it has sent text messages to 1,130 people, advising them to receive tests.
"The city government said it is in the process of verifying personal information of the remaining 1,982 people via data from mobile base stations and club card payments. Yongsan police station has also secured closed-circuit television screens to support the epidemiological investigation."
This is standard operating procedure. For everyone who tests positive, everyone associated with that person ― whether it's work, family, friends, etc. ― would also be notified and asked to be tested themselves. In short, your private life is no longer private to those closest to you. In this case, your sexual orientation is literally headlining the national news. You just lost agency on the deepest secret of your identity in the most public way possible and have to deal with the aftermath.
The COVID crisis, unlike anything else, has highlighted the trade-off decision that societies have to make between privacy and public health. Each society will make its own choice, in line with the local cultural norms and historical background.
Brian Kim, writing in the Law Fare, authored a very informative article titled, "Lessons for America: How South Korean Authorities Used Law to Fight the Coronavirus," that compares the legal underpinning that allows Korean authorities to be so invasive in an effort to control a public health crisis. Korea's bad experience dealing with the Middle East Respiratory Syndrome (MERS) in 2015 resulted in a set of legal tools that specifically targets pandemics.
According to Kim, Korean laws "equip the minister of health with extensive legal authority to collect private data, without a warrant, from both already confirmed and potential patients… expressly mandate that private telecommunications companies and the National Police Agency share the location information of patients … and [of] persons likely to be infected." This is in addition to Article 76-2(1), which require "medical institutions, pharmacies, corporations, organizations, and individuals" to provide "information concerning patients … and persons feared to be infected."
Just imagine whether the U.S. could pass similarly intrusive laws. In fact, recent public debates over COVID tracking apps and immunity passports have already drawn the ire of American Civil Liberties Union (ACLU) that writes, "As tempting as immunity passports may be for policymakers who want a quick fix to restart economic activity in the face of widespread suffering from the COVID-19 pandemic, they present both public health and civil rights concerns that cannot be overlooked… Any immunity passport system endangers privacy rights by creating a new surveillance infrastructure to collect health data."
On the other side of this political spectrum are the armed protesters who decry the forced lock-down and basically share the same concern as ACLU over government encroachment into their personal freedoms.
That's why it's somewhat disingenuous to point to Korea and shame the U.S. for not doing as well. One can argue over the merits of these positions in the midst of the current crisis.
But the main point is that the U.S. is not Korea. You can't lift and shift the Korean solution to the U.S. and expect it to work just as well. Kim writes, "Most of the highly specific levers available to the South Korean government have no comparable analogue in American federal law. This difference is by design, rooted in deeper American constitutional instincts about civil liberties and federalism."
This doesn't mean that the U.S. can't do a much better job ― it certainly can and must come up with a better, more cohesive plan. But ultimately, it will have to be a U.S. plan suited to the peculiar nature of American society. And that's what we are seeing emerging separately from the 50 states that make up the union. We will just have to wait and see how the U.S. will ultimately fare and whether the human cost of American exceptionalism will be too much to bear.
Jason Lim (jasonlim@msn.com) is a Washington, D.C.-based expert on innovation, leadership and organizational culture.
