1. Refocusing on Substantive Liberty and Equality Interests

First, the alternative conception allows us to rid ourselves of a formalistic and hollow understanding of data protection. It helps us to refocus on the substantive issues at stake. For many people, the purely formal idea that some type of right is always infringed when a piece of personal information has been processed, meaning that they have to sign a consent agreement or click a button, has become formalistic and stale in the context of data protection regulation. The connection to the actual issues that are connected with data processing has been lost. For example, during my time as vice dean of our law faculty, I attempted to obtain the addresses of our faculty alumni from the university’s alumni network. The request was denied because it would constitute an infringement of the data protection right of the alumni. The alumni network did not have the written consent of its members to justify this infringement. As absurd as this might seem, this line of argument is the only correct one for the traditional, formal approach to data protection. Addresses are personal data and any transfer of this personal data is an infringement of the formal right to data protection, which has to be justified either by consent or by a specific statute – both of which were lacking. This is, however, a purely formal perspective. Our alumni would probably be surprised to know that the faculty at which they studied for years, which handed them their law degrees, and which paved the road to their legal career does not know that it is their alma mater. There is no risk involved for any of their fundamental rights when the faculty receives their address information from the alumni network of the very same university. An approach that discards the idea that there is a formal right to data protection, but asks which substantive fundamental rights positions are at stake, can resubstantialize the right to data protection. This also holds for AI systems: the question would not be what type of data is processed when and how but instead what kind of substantive, fundamental right position is endangered by the AI system.

2. The Threshold of Everyday Digital Life Risks

Second, refocusing on the abstract danger for concrete, substantive interests protected by fundamental rights allows for a discussion on thresholds. Also, in the analog world, the law does not react to each and every risk that is associated with modern society. Not every abstract risk exceeds the threshold of a fundamental rights infringement. There are general life risks that are legally moot. In extreme weather, even healthy trees in the city park carry the abstract risk that they might topple, fall, and cause considerable damage to property or even to life and limb. Courts, however, have consistently held that this abstract danger does not allow for public security measures or civil claims to chop down healthy trees.Footnote ⁴⁰ They consider it part of everyday life risks that we all have to live with if we stroll in public parks or use public paths.

The threshold for everyday life risks holds in the analog world and should hold in the digital world, too. In our digital society, we have to come to grips with a – probably dynamic – threshold of everyday digital life risks that do not constitute a fundamental rights infringement, even though personal data have been stored or processed. On one of my last visits to my physician, I was asked to sign a form that would allow his assistants to use my name, which is stored in their digital patient records, in order to call me from the waiting room when the doctor is ready to see me. The form cited the proper articles of the, at the time, newly released General Data Protection Regulation of the European Union (Articles 6(1)(a) and 9(2)(a)). There might be occasions where there is some risk involved in letting other patients know my name. If the physician in question were an oncologist, it might lead to people spreading the rumor that I have a terminal illness. This might find its way to my employer at a time when my contract is up for an extension. So, there can indeed be some risk involved. We have, however, always accepted this risk – also in a purely analog world – as one that comes with the visit of physicians, just as we have accepted the risk of healthy trees being uprooted by a storm and damaging our houses, cars, or even hurting ourselves. As we have accepted everyday life risks in the analog world, we have to accept everyday digital life risks in the digital world.

For AI technologies, this could mean that they can be designed and implemented in a way that they remain below the everyday digital life risk threshold. When an AI system uses anonymized personal data, there is always a risk that the data will be deanonymized. If sufficient safeguards against deanonymization are installed in the system, however, they may lower the risk to such a degree that it does not surpass the level of our everyday digital life risk. This may be the case if the AI system uses data aggregation for planning purposes or resource management, which do not threaten substantive individual rights positions. An example of a non-AI application is the German Corona-Warn-App, which is designed in such a way as to avoid centralized storage of personal data and thus poses almost no risk of abuse.

3. A Systemic Perspective

Third, the alternative approach implies a more systemic perspective on data collection and data processing measures. It allows us to step back from the idea that each and every instance of personal data processing constitutes an infringement of a fundamental right. If data protection is understood as protection against abstract dangers, then we do not have to look at the individual instances of data processing. Instead, we can concentrate on the data processing system and its context in order to evaluate the abstract danger it poses.

Unlike the traditional approach, focusing on abstract dangers for substantive fundamental rights that are connected with AI technologies does not require the full transparency of the AI system. The alternative approach does not require exact knowledge of when and how what kind of data is processed. What it needs, however, is a risk analysis and an evaluation of the risk reduction, management, correction, and compensation measures attuned to the specific context of use.Footnote ⁴¹ It requires regulation on how false positives and negatives are managed in the interaction between AI and human decision makers. At the time of our conference, the New York Times reported on the first AI-based arrest generated by a false positive of facial recognition software.Footnote ⁴² As discussed in the report, to rely solely on AI-based facial recognition software for arrests seems unacceptable given the failure rate of such systems. Legal regulation has to counterbalance the risks stemming from AI by forcing the police to corroborate AI results with additional evidence. A fundamental rights analysis of the facial recognition software should include an evaluation not only of the technology alone but also of the entire sociotechnological arrangement in the light of habeas corpus rights and the abstract dangers for the right to personal liberty that come with it. The actual cases, however, are not about some formal right to data protection but about substantive rights, such as the right to liberty or the right against racial discrimination, and the dangers AI technologies pose for these rights.

For AI technologies, the differences between the traditional approach and the suggested approach regarding the right to data protection are similar to differences in the scientific approach to, and the description of, the systems as such. Whereas traditionally the approach to, and the description of, computational systems has been very much dominated by computer sciences, there is a developing trend to approach AI systems – especially because of their lack of informational transparency – with a more holistic intradisciplinary methodology. AI systems are studied in their deployment context with behavioral methodologies which are not so much focused on the inner informational workings of the systems but on their output and their effects in a concrete environment.Footnote ⁴³ The traditional approach tends toward a more technical, informational analysis of AI systems, which is significantly hampered by the black box phenomenon. The shift to the substantive rights perspective would lean toward a more behavioral approach to AI. The law would not have to delve into the computational intricacies of when and how what type of personal data is processed. It could take a step back and access how an AI system ‘behaves’ in the concrete sociotechnological setting it is employed in and what type of risks it generates for which substantive fundamental rights.

1. Transparency

In accordance with Article 5(1)(a) alt. 3 GDPR, personal data must be ‘processed […] in a transparent manner in relation to the data subject’. These transparency requirements are of particular importance for matters relating to AI. As set out in Recital 39 of the GDPR, the principle of transparency

These transparency requirements are specified by the provisions contained in Articles 12-15 GDPR, which stipulate the controllers’ obligation to provide information and to grant access to personal data. They are further accompanied by the obligation to implement appropriate technical and organisational measures.Footnote ¹³ Moreover, Article 12(1) sentence 1 GDPR requires the controller to provide the data subject with any information and communication ‘in a concise, transparent, intelligible and easily accessible form, using clear and plain language’. Especially with regard to issues relating to AI, the implementation of these requirements is very likely to present responsible controllers with a very complex and onerous task.

In an AI scenario, it will often be difficult to state and substantiate the specific purposes for any given data analysis in advance. Controllers may also face enormous difficulty when tasked with presenting the effects that such an analysis could have on the individual data subject in a sufficiently transparent manner. In fact, the very nature of self-learning AI which operates with unknown (or even inexplicable) variables seems to oppose any attempt to present and provide any transparent information.Footnote ¹⁴ In addition, the aforementioned ‘black-box-phenomena’ may occur if, for instance, artificial neural networks on so-called hidden layersFootnote ¹⁵ restrict or even prohibit the traceability of the respective software-processes. Thus, on the one hand, it may be difficult to break down the complex and complicated AI analyses and data collection processes into ‘concise, transparent, intelligible and easily accessible’ terms that the affected data subject can understand. On the other hand, the lack of transparency is an inherent feature and characteristic of self-learning, autonomous AI technologies.Footnote ¹⁶ Furthermore, these restrictions on transparency also come into play when considering potential justifications for the processing of data. This is particularly relevant where the justification is based on the data subject’s consent as this (also) requires an informed indication of the subject’s agreement.Footnote ¹⁷

However, according to the principles of the GDPR, even controllers who use systems of AI and, thus, carry out extensive analyses of huge amounts of data of different origins, should have the (realistic) possibility to process data in a manner which allows them to adequately inform the subject about the nature and origin of the processed data. Further difficulties are likely to arise in situations where personal data are generated in the course of analyses or as a result of combinations of originally non-personal data. Because, in this case, the legally relevant collection of data is to be found in the analysis, it is difficult if not impossible to pinpoint the data’s initial origin and source. In such constellations, it should, thus, be assumed that the responsible controller is permitted to merely provide general information, for instance by naming the source of the data stock or the systems utilised to process the data in addition to the means used for their collection. In this context, it also has to be emphasised that the obligation to inform the data subject as set out in Article 14(5)(b) GDPR may be waived if the provision of such information would be disproportionally onerous. The applicability of this waiver must be determined by balancing the controller’s efforts required for the provision of information with the data subject’s right and interest to be informed. The outcome of this (case-by-case) balancing process in big-data-situations – not only in the context of AI – will largely depend on the effects that the data analysis and processing have on the subject’s fundamental rights, as well as on the nature and degree of risks that arise in connection thereto. For the purposes of such an assessment, the principle of transparency should extend beyond the actual data processing procedures to include the underlying technical systematics and the decision-making systems employed by the (responsible) controller.

2. Automated Decisions/Right to Explanation

Article 22 GDPR is intended to protect the individual from being made subject to decisions based solely on an automated assessment and evaluation of the subject’s personal profile, because this would risk degrading the individual to a mere object of computer-assisted programs. Against this background, the GDPR imposes additional obligations to provide information in situations where the responsible controller utilises automated decision-making procedures in Articles 13(2)(f), 14(2)(g), and 15(1)(h) GDPR. Pursuant to these provisions, the controller has to provide ‘meaningful information about the logic involved’ in the data processing. This obligation may be called into questionFootnote ¹⁸ when considering the aforementioned difficulties that controllers may face when tasked with providing information about complex and potentially inexplicable (autonomous) AI processes and the results based thereon. In these scenarios, the controller should merely have to provide (and the subject should merely be entitled to) general information on the functioning of the specific AI technology, whereas a right to a substantiated explanation should be rejected. In accordance with Article 35(3)(a) GDPR, an evaluation of personal data which is based on automated processing requires a data protection impact assessment. It should also be emphasised that the use of AI as such is not restricted as of today. Instead, the restrictions apply solely to decision-making processes based on the use of AI.

3. Purpose Limitation/Change of Purpose

Pursuant to the principle of purpose limitation as set out in Article 5(1)(b) GDPR, the purposes for processing and collection of (personal) data must be specified and made available to the data subject in a concise and intelligible way.Footnote ¹⁹ This principle also applies to any further processing of data. The requirement of a pre-defined purpose limitation generally opposes the basic concept of AI, according to which AI should develop independently (or possibly within a certain pre-defined framework) and should be used for purposes not defined in advance.Footnote ²⁰ Against this backdrop, the prescription of purpose limitations threatens to impede the (unhindered) development and potentials of AI technologies.Footnote ²¹ Thus, the limitation of legitimate purposes of data processing may lead to a considerable restriction of technological AI potentials.Footnote ²² In situations in which AI can (and frequently even should) lead to unforeseen and possibly unforeseeable applications and results, it can, therefore, be very challenging to find an appropriate equilibrium between the principle of purpose limitation and the innovation of AI technologies. In many AI scenarios, it is virtually impossible to predict what the algorithm will learn. Furthermore, the purpose in the sense of Article 5(1)(b) GDPR may change in the course of the (autonomous) development of self-learning AI, especially as the relevant objectives of the data processing may not be known at the time of data collection. Moreover, it is reasonable to be concerned about a distortion of the results (freely) generated by AI tools as potentially induced by data protection law, if such technologies are only granted restricted (or no) access to certain data sources. There is, thus, a notable risk of conflicts between the interests and objectives of the individual on the one hand and public welfare on the other. In order to avoid such conflicts, it is crucial to explicitly list the application and use of AI as one of the purposes for the collection of data. Data controllers should, therefore, seek to identify, document, and specify the purposes of future data processing at an early stage. Where these measures are not taken, the requirements for a permissible change of purpose follow from Article 6(4) GDPR.

Article 6(4) GDPR, which addresses purpose changes, lists a number of criteria for the evaluation of the compatibility of such changes in situations where the data processing is carried out for purposes other than the ones for which the data has been originally collected. This creates a direct link to the principle of purpose limitation as laid down in Article 5(1)(b) GDPR. It should further be emphasised that the compatibility of a change of purpose with the original purpose does not affect the cumulative prerequisites for the lawfulness of the processing in question. Because Article 6(4) GDPR itself does not constitute a legal basis for the processing of data for other purposes, recourse must be taken to Article 6(1) subpara. (1) GDPR which requires the existence of a legal justification also for other purposes. In consequence, the controller is responsible to ensure that the data processing for the new purpose is compatible with the original purpose and based upon a legal justification in the sense of Article 6(1) subpara. (1) GDPR. In many cases, relevant personal data will not have been collected for the purposes of training or applying AI technology.Footnote ²³ In addition, controllers may sometimes have the hope or expectation to subsequently use the collected data for other purposes, for instance in exploratory data analyses. If one were to pursue a more restrictive line of interpretation regarding the change of purposes by applying the standard of Article 6(4) GDPR, it would be impossible to use AI with a sufficient degree of legal certainty. Especially, situations, in which data is generated in different contexts and subsequently combined or used for (new) purposes, are particularly prone to conflict.Footnote ²⁴ In fact, this scenario demonstrates the far-reaching implications of and issues arising in connection with the principle of purpose limitation and AI scenarios: if the purpose for the processing of data cannot (yet) be determined, the assessment of its necessity becomes largely meaningless. Where the purpose limitation remains vague and unspecified, substantial effects of this limitation remain unlikely.

4. Data Minimisation/Storage Limitation

Pursuant to the principle of data minimisation,Footnote ²⁵ personal data must be adequate, relevant, and limited to what is necessary in relation to the purposes for which they are processed. The principle of data minimisation is specified by the requirement of storage limitation (as will be elaborated in the following) and the provisions concerning data protection through the implementation of technical measures and data protection ‘by design and by default’.Footnote ²⁶ Similarly to the principles described above, the principle of data minimisation oftentimes directly contradicts the general concept of AI technologies which is based on and requires the collection of large amounts of data.Footnote ²⁷ Given the very nature of AI applications, it is exceedingly difficult to make any kind of prediction regarding the type and amount of data necessary in constellations which have yet to be determined by the application itself. In addition, the notion of precautionary protection of fundamental rights by way of data avoidance openly conflicts with the high demand for data in any given AI scenario.Footnote ²⁸

The principle of storage limitationFootnote ²⁹ prescribes that where personal data is stored, the identification of the data subject is only permissible for as long as this is necessary for the processing purposes. This principle also poses considerable difficulties in AI constellations, because the deletion or restriction of personal data after the fulfilment of their purpose can significantly impede both the development and use of AI technologies. According to Recital 39 sentences 8 and 10 of the GDPR, the period for which personal data is stored must be limited to a strict minimum. The controller should further establish time limits for the data’s erasure or their periodic review. Correspondingly, Article 17 GDPR contains the data subject’s right to demand the immediate erasure of any data concerning him or her under certain conditions.Footnote ³⁰

5. Accuracy/Integrity and Confidentiality

Another principle of data protection law which may be affected in AI scenarios is the principle of accuracy as set out in Article 5(1)(d) GDPR. This principle is intended to ensure that the collected (personal) data accurately depicts reality so that the affected data subjects will not suffer any disadvantages resulting from the use of inaccurate data. In situations in which the procedure and systems used for the processing of data present themselves as a ‘black box’ to both data subject and controller, it can be very difficult to detect inaccurate information and to restore their accuracy.Footnote ³¹ However, situations concerning the accuracy of data require a distinction between data input and output; as the latter is a result of data-processing analyses and processes – also and in particular in situations involving AI – it will regularly constitute a (mere) prognosis.

Pursuant to Article 5(1)(f) GDPR, personal data must be processed in a manner that ensures their appropriate security. The controller is thereby required to take adequate measures to ensure the data’s protection against unauthorised or unlawful processing and against accidental loss, destruction, or damage.

6. Lawfulness/Fairness

The lawfulness of data processingFootnote ³² requires a legal basis authorising the processing of data as the normative concept of data protection law envisages a prohibition subject to authorisation. In order to be deemed lawful in the sense of Article 5(1)(a) GDPR, the processing must fulfil at least one of the prerequisites enumerated in Article 6(1) GDPR. In this context, Article 6(1) subpara. 1(b) GDPR permits the processing of data if it is necessary for the performance of a contract which the data subject is party to or for the implementation of pre-contractual measures. However, in scenarios involving AI, such pre-contractual constellations will not arise regularly. Similarly, AI scenarios are very unlikely to fall within the scope of any of the other authorisations listed in Article 6(1) subpara. (1) GDPR which include the existence of a legal obligation, the protection of vital interests, or the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.Footnote ³³

In contrast, the authorisations set out in Article 6(1) subpara. (1)(a) and (f) GDPR, which are based on the data subjects’ consentFootnote ³⁴ and the balancing of interestsFootnote ³⁵ are of great practical importance for the development and use of AI applications. Especially in connection with authorisations relying on consent, attention must be paid to the data subject’s right to withdraw his or her consentFootnote ³⁶ and to provisions regulating the processing of special categories of personal data.Footnote ³⁷

7. Intermediate Conclusion

Given its rather broad, oftentimes undefined and vague legal terminology, the GDPR, in many respects, allows for a flexible application of the law. However, this flexibility goes hand in hand with various (legal) uncertainties. These uncertainties are further perpetuated by the GDPR’s notable and worrisome lack of reference to and regulation of AI-specific constellations. As shown above, these constellations are particularly prone to come into conflict with the general principles of data protection as set out in Article 5(1) GDPR and as specified and reiterated in a number of other provisions. In this context, the principles of data minimisation and storage limitation are particularly problematic. Other conflicts, especially involving the GDPR’s principles of purpose limitation and transparency, may arise when considering the rather complex and ambiguous purposes and structures for the processing of data as well as the open-ended explorative analyses frequently observed in AI-scenarios. This particularly applies to subsequent changes of purpose.Footnote ⁴⁷ It must also be emphasised that the requirement of transparency serves as a regulatory instrument to ensure the lawfulness of data processing and to detect tendencies of dominanceFootnote ⁴⁸ or, rather, the abuse thereof. However, legal uncertainties entail considerable risks and burdens for controllers implementing AI technologies which are amplified and intensified by the GDPR’s new and much stricter sanctions regime.Footnote ⁴⁹ Finally, it has to be pointed out that these conflicts by no means only apply to known concerns of data protection law, but rather constitute the starting point for new fundamental questions in this field.

1. Personal Reference

The existence of such a personal reference is a necessary prerequisite for the application of the GDPR. From a factual point of view, as set out by Article 2(1) GDPR, the GDPR applies in cases of a ‘wholly or partially automated processing of personal data and for non-automated processing of personal data stored or to be stored in a file system’. Therefore, it must be asked whether, in a given case and under specific circumstances, personal data is being processed.Footnote ⁵³ According to the legal definition stipulated in Article 4(1) GDPR, personal data is

According to the pertinent case law of the European Court of Justice (ECJ), it is sufficient for the responsible data controller to have legal means at his or her disposal to make the data of the third party available (so-called absolute personal reference); this can also encompass detours via state authorities.Footnote ⁵⁴

The application of the GDPR – and thus the application of its strict regulatory regime – could be avoided by way of, for instance, the data’s anonymisation. Article 3(2) of Regulation No. 2018/1807 concerning the free movement of non-personal data states that, in the event of personal and non-personal dataFootnote ⁵⁵ being inseparable, both sets of rules (regarding personal and non-personal data) must, in principle, be applied. However, in many cases, it will not be easy to determine with any (legal) certainty whether and to what extent data records may also contain personal data. Hence, in order to remain on the ‘safe side’ regarding the compliance with the current data protection regime, controllers may feel the need to always (also) adhere to the provisions and requirements of the GDPR even in cases where its application may be unnecessary. This approach may result in considerable (and needless) expenditures in terms of personnel, material, and financial resources.

2. Responsibility

The question of who is responsible for the compliance with the requirements of data protection and to whom data subjects can turn in order to exercise their rights is of great importance.Footnote ⁵⁹ Article 4(7) GDPR defines the data controller as ‘the natural or legal person, public authority, agency or other body which alone or jointly with others determines the purposes and means of the processing of personal data’. In practice, an essential (distinguishing) characteristic of a data controller within the sense of the GDPR is, thus, the authority to make a decision about the purposes and means of data processing. In a number of recent rulings, the ECJ has further elaborated the criterion of responsibility by specifying the nature and extent of a controller’s decision concerning the purpose and means of processing personal data: Facebook Fanpage,Footnote ⁶⁰ Jehovah´s Witnesses,Footnote ⁶¹ and Fashion ID/Facebook Like Button.Footnote ⁶² According to the (previous) case law of the ECJ, those involved in the processing of data do not necessarily have to bear an equal amount of responsibility. Instead, the criterion of responsibility is met if the participants engage in the data processing at different stages and to varying extents, provided that each participant pursues its own purposes for the processing.

3. Privacy by Default/Privacy by Design

Article 25 GDPR contains provisions concerning the protection of data by way of (technology) design and data protection-friendly default settings.Footnote ⁶³ The first paragraph of the provision stipulates the principles for privacy by design, that is, the obligation to design technology in a manner that facilitates and enables effective data protection (in particular to safeguard the implementation of data-protection principles such as data minimisation). In its scope, the provision is limited to an enumeration of various criteria to be taken into account by the controller with regards to the determination of appropriate measures and their respective durations. The provision does not further specify any concrete measures to be taken by the responsible controller – with the exception of pseudonymisation as discussed earlier. In addition, Article 25(2) GDPR sets out the principle of privacy by default, in other words, the controller’s obligation to select data protection-friendly default settings to ensure that only data required for the specific purpose are processed. Finally, in order to demonstrate compliance with the requirements of Article 25(1) and (2) GDPR, Article 25(3) allows the use of an approved certification procedure in accordance with Article 42 GDPR. The challenges previously described typically arise in cases where the GDPR’s transparency requirements coincide with complex AI issues, which – by themselves – already present difficulties for the parties concerned. Against this background, certification procedures, data protection seals, and test marks in the sense of Article 42 GDPR could represent valuable instruments on the way to data protection compliance.

4. Data Protection Impact Assessment

The data protection impact assessment pursuant to Article 35 GDPR addresses particularly high-risk data processing operations with regard to the rights and freedoms of natural persons. The provision requires the controller to carry out a preventive review of the potential consequences of any processing operations likely to result in such a high risk and to subsequently select and implement the appropriate risk-minimising remedial measures. The obligation to carry out a data protection impact assessment serves the purpose to ensure the protection of personal data and, thus, the compliance with the provisions of the Regulation.Footnote ⁶⁴ At the same time, Articles 35(4) and (5) require the responsible supervisory authority to establish and make public a list of the kind of the specific processing operations which require such an impact assessmentFootnote ⁶⁵ and of those operations which do not require an assessment.Footnote ⁶⁶ These lists are intended to ensure legal certainty for and equal treatment of responsible controllers and to facilitate transparency of all parties concerned. By including processing operations, for which a data protection impact assessment must be carried out, in a list,Footnote ⁶⁷ the supervisory authority can also positively establish an obligation to carry out a data protection impact assessment.

Furthermore, it should be noted that Article 35(1) GDPR explicitly requires the conduction of a data protection impact assessment ‘in particular’ where ‘new technologies’ are used. Naturally, this provision is of particular relevance in cases where large amounts of data are processed using ‘new’ AI systems and technologies and might indicate that the use of such applications may automatically trigger the need for a comprehensive and onerous impact assessment. The GDPR does not explicitly provide any examples of technologies or areas of technology which qualify as ‘new’. However, a new technology is likely to pose a high risk to the rights and freedoms of natural persons if it enables the execution of large-scale processing operations which allow the processing of large quantities of personal data at a regional, national, or supranational level and which may involve data relating to a large number of individuals and data of a particularly sensitive nature. Thus, developments such as Smart Car, Smart Health, Big Data, and Tracking procedures as well as new security and monitoring technologies are likely to fall within the scope of Article 35(1) GDPR, hence requiring controllers using and offering such technologies to conduct a data protection impact assessment in accordance with Article 35 GDPR.Footnote ⁶⁸ In the context of AI systems, it remains highly doubtful whether such an obligation would even be feasible, given the fact that self-learning programs develop continuously and more or less unpredictably.

5. Self-Regulation

In order to specify, construe, and interpret the large number of indeterminate legal provisions of the GDPR, it is also necessary to give consideration to the elements of self-regulation or co-regulation.Footnote ⁶⁹ Article 40 GDPR gives associations and other bodies the possibility to draw up, amend, or extend rules of conduct which clarify the application of the GDPR. Thus, pertinent rules of conduct can be developed (e.g. by means of best practices) which can subsequently be approved by the responsible supervisory authoritiesFootnote ⁷⁰ or given general binding force by the EU Commission. In addition, certification procedures, data protection seals, and test marksFootnote ⁷¹ could also serve as valuable instruments when it comes to the compliance with data protection law.

On the basis of Article 42 GDPR, data controllers may also voluntarily seek certification of their data processing operations by the responsible supervisory authority or an accredited body within the meaning of Article 43 GDPR. Recital 100 of the GDPR emphasises that the associated certification procedures, data protection seals, and marks are intended to increase transparency and improve compliance with the GDPR’s requirements.

1. Substantive-Law Considerations

From a substantive-law point of view, one key element of the GDPR that merits a closer examination is the personal reference as a prerequisite for the GDPR’s application. This is not least due to the structural narrowness of the personal reference in its current definition as well as its frequent lack of adequate relevance. Presently, the personal reference as a connecting criterion only insufficiently reflects the existing multiple rationalities of data processing constellations and lacks the capability to take into account the specific characteristics of each case-by-case context. In fact, the one-size-fits-all-approach of the GDPR does not appropriately distinguish between different risk situations, which means that – due to the ubiquitous relevance of personal data – there exists the risk of an excessive application of the law. Among others, this certainly applies to issues relating to the use of AI as presently discussed. With this in mind, it is both necessary and important to create sector-specific regulations for AI constellations, for instance regarding the permissibility of data processing and the specific requirements thereof. Furthermore, the ubiquity of data processing operations in the present age of digitalisation frequently calls into question the general concept of data protection in its current state. It is, therefore, necessary to (at least partially) move away from the current approach, in other words, the prohibition subject to permission in favour of a more general clause. Such a provision should differentiate between different data protection requirements according to specific risks that specific situations are likely to pose. Such a stringent risk-based approach would have the advantage of facilitating the weighing and balancing of the interests of all affected parties as well as appropriately taking into account their respective purposes for protection. In addition, the readjustment of the objectives that the GDPR serves to protect may help to realise an adequate protection of an individual’s personality and privacy rights whilst also incentivising the development and use of AI applications. In this context, the overarching objective should always be to reassess the balance of interests pursued by data subjects, responsible processors, third parties, and the public welfare in general.

Another issue that ought to be addressed relates to the granting of access to data and the corresponding rights of usage. This further encompasses questions as to the law of obligations in a data law context, data ownership, and data economics. Finally, due consideration should be given to whether the existing legal framework should be supplemented by specific provisions governing the use of AI. These provisions should not least be capable of overcoming the currently existing tensions resulting from the bi-dimensional, two-person relationship between controller and data subject. This could necessitate an amendment of data protection law with regard to AI in order to move away from an approach based solely on the individual and to appropriately take into account the challenges that may arise in connection with the quantity, heterogeneity, inter-connectivity, and dynamism of the data involved. Such an amendment should be accompanied by more systematic protective measures. A valuable contribution could hereby be made by technical design and standardisation requirements. In addition, all of these measures must be safeguarded and supported by way of an adequate and effective supervisory and judicial protection.

2. Conflicts between Data Protection Jurisdictions

Due to the cross-border ubiquity of data (processing) and the outstanding importance of AI-related issues, efforts must be made to achieve a higher degree of legal harmonisation. Ideally, such a development could result in the establishment of an overarching supra- or transnational legal framework, containing an independent regulatory regime suited to the characteristics of AI. Such a regime would also have to take into account the challenges resulting from the interplay of multi-level legal systems as well as the conflicts arising between different data protection legal regimes. For instance, conflicts may arise when the harm-based approach of US data protection law, which is focused on effects and impairments, the Chinese system, which allows for far-reaching data processing and surveillance (e.g. a Social Credit System), and the GDPR approach, which is based on a preventive prohibition subject to permission, collide. Assuming that a worldwide harmonisation of the law is hardly a realistic option in the foreseeable future, it is important to aim for an appropriate balance within one’s ‘own’ data (protection) regime.

3. Private Power

In connection with the transnationalisation of the legal framework for data protection and the conflicts between different regulatory regimes, regard must also be paid to the influence exerted by increasingly powerful private (market) players. This, naturally, raises questions as to the appropriate treatment and, potentially, the adequate containment of private power, the latter of which stems from considerations regarding the prevention of a concentration of power and the sanctioning of the abuse of a dominant market position. However, the GDPR itself does not directly stipulate any specific protective measures governing the containment of private power. Legal instruments capable of addressing the aforementioned issues must, therefore, be found outside of the data protection law body. For this purpose, recourse is frequently taken to the (unional or national) competition law, because it expressly governs questions relating to the abuse of market power by private undertakings and, in addition, provides a reliable system and regulatory framework to address such issues. In this regard, the German Federal Cartel Office (FCO) served as a pioneer when it initiated proceedings against Facebook for the alleged abuse of a dominant market position through the use of general terms and conditions contrary to data protection law, specifically the merging of user data from various sources.Footnote ⁷² In any case, the role and power of private individuals as an influential force in the field of data protection should certainly not be underestimated. In fact, by establishing new technological standards and, thereby, elevating their processing paradigms and business models to a de facto legal power, they have the potential to act as substitute legislators.

1. Consent Principle under Data Protection Laws

A major hurdle in implementing the pandemic-triggered contact tracing scheme in Korea was the country’s stringent data protection regime. Major pillars of the legal regime include the Personal Information Protection Act (PIPA),Footnote ⁷ the Act on Protection and Use of Location Information (LIA),Footnote ⁸ and the Communications Secrecy Protection Act (CSPA).Footnote ⁹ As a means to guarantee the constitutional right to privacy and the right to self-control of personal data, these laws require prior consent from the data subject or a court warrant prior to the collection and processing of personal data, including geolocation data and communications records. Arguably, the consent principle of the Korean law is largely modeled after what can be found in the European Union’s (EU’s) privacy regime including the General Data Protection Regulation (GDPR). However, Korea’s data protection laws tend to be more stringent than the EU’s, for instance, by requiring formalities such as the notification of mandatory items when obtaining consent. Certain statutory features of the Korean data protection laws on data collection are as follows.

First, the PIPA is the primary law governing data protection. Under the PIPA, the data subject must, before giving consent to collection, be given notice including the following: (i) the purpose of collection and use, (ii) the items of data collected, (iii) retention and use period, and (iv) (unless data is collected online) the data subject’s right to refuse consent and disadvantages, if any, from the refusal.Footnote ¹⁰ The data subject must, before giving consent to disclosure, be given notice of the recipient and similar items as above.Footnote ¹¹ A recent amendment to the PIPA which took place in 2020 allows exceptions to the purpose limitation principle within the scope reasonably related to the purpose for which the personal data is initially collected.Footnote ¹² The 2020 amendment of the PIPA also grants an exemption to the consent requirement when the processing of pseudonymized personal data is carried out for statistical, scientific research, or archiving purposes.Footnote ¹³ However, these built-in exceptions are not broad enough to cover the processing of personal data for the centralized contact tracing scheme.

Second, the LIA is a special law that governs the processing of geolocation data such as GPS (global positioning system) data and cell ID. This type of data is usually collected by mobile carriers or mobile operating system operators and is shared with mobile app developers. Under the LIA, a data subject of geolocation data must be given appropriate notice in the standard forms before giving consent to the collection, use, or disclosure of personal geolocation data.Footnote ¹⁴

Third, the CSPA governs when and how courts or law enforcers can request communications records including base station data or IP (internet protocol) addresses from carriers or online service providers.Footnote ¹⁵ Under the CSPA, law enforcers can request data concerning a specific base station (the base station close to the location where the mobile phone user at issue made calls) from mobile carriers in order to deter crime, to detect or detain suspects, or to collect or preserve evidence.Footnote ¹⁶ Doing so is, however, permitted only when other alternatives would not work. This provision reflects the reasoning of a constitutional case of 2018. In this case, the Constitutional Court of Korea held that a prosecutor’s collection of the identities of mobile subscribers that accessed a single base station infringed the constitutional right to self-control of personal data and the freedom of communications and that doing so is thus unconstitutional.Footnote ¹⁷

However, the previous MERS outbreak had shown the need for putting in place an effective contact tracing scheme when needed. This prompted an amendment of the Contagious Disease Prevention and Control Act (CDPCA)Footnote ¹⁸ so as to override the consent requirements under Korean data protection law in the event of an outbreak. There already is a provision in the PIPA, which exempts the application of the consent and other statutory requirement for temporary processing of personal data when there is an emergency need for public safety and security including public health.Footnote ¹⁹ The amendment of the CDPCA gave more concrete legal authority for implementing a contact tracing scheme during an outbreak of a contagious disease. After the onset of COVID-19, the Korean legislature further amended the CDPCA several times in order to better cope with the situations that had not been anticipated prior to the outbreak of COVID-19.

2. Legal Basis for Centralized Contact Tracing

For manual contact tracing by epidemiological investigators, interviews play a crucial role. Conducting interviews obviously takes time and sometimes accuracy could become an issue. As such, manual contact tracing has limitations in terms of the timely detection and quarantine of those suspected of being infected. Efforts were made in many parts of the world in order to make up for these limitations and several automated contact tracing models have been devised. Most of the newly devised models rely on geolocation data, typically gathered through smart phones. Each of these models has its own advantages and disadvantages as discussed below.

Depending on the provenance of the relevant data, these models can be divided into centralized models and decentralized models. There can also be a hybrid model. Among different types of automated contact tracing models, a majority of developed countries appear to have chosen decentralized ‘privacy-preserving’ proximity tracing models. These typically relay geolocation data utilizing the Bluetooth Low Energy technology. By design, these models grant data subjects the right to avoid tracking by not downloading or activating mobile apps. Soon after early efforts were made in order to develop and deploy a contact tracing model in the EU, the European Data Protection Board (EDPB) issued guidelines dated 21 April 2020. According to the EDPB guidelines, COVID-19 tracing apps would have to be based on the use of proximity data instead of geolocation data.Footnote ²⁰

For the decentralized approach, there are two subtypes: a fully decentralized approach and a partially decentralized approach. A fully decentralized approach works as follows. Through the operation of a mobile app, (i) smart phones exchange ephemeral IDs of individuals nearby via Bluetooth Low Energy (‘Bluetooth Handshakes’); (ii) those individuals who are subsequently confirmed positive send their ephemeral IDs to a database in the server; and (iii) each app continues to download the database from the server and alerts if its owner has been in close proximity to one of those who are tested positive.Footnote ²¹ Apple-Google’s Exposure Notification (AGEN) scheme is a well-known case of the decentralized approach.Footnote ²² AGEN has reportedly been embedded in the majority of European COVID-19 apps, including Austria’s Stopp Corona, Germany’s Corona-Warn-App, Italy’s Immuni, Estonia’s HOIA, the UK’s NHS COVID-19, Protect Scotland, and StopCOVID NI (for Northern Ireland).Footnote ²³ Japan also adopted AGEN in its contact tracing scheme called COCOA.

On the other hand, a main differentiating feature of the partially decentralized approach is that, in addition to being equipped with the functions of the fully decentralized app, a partially decentralized app would send ephemeral IDs collected from other smart phones to the server database so that it becomes possible to conduct contact tracing, risk analysis, and message transmission, utilizing the data accumulated at the server database.Footnote ²⁴ Its examples include the Pan-European Privacy-Preserving Proximity Tracing (PEPP-PT) (specifically, the ROBERT protocol) and BlueTrace.Footnote ²⁵ The PEPP-PT scheme was embedded in France’s StopCovid and TousAntiCovid, and the BlueTrace approach was embedded in Singapore’s TraceTogether and Australia’s COVIDSafe.

Unlike these approaches, Korea has taken a centralized network-based contact tracing approach, which utilizes geolocation data collected from mobile carriers and other types of data that facilitate tracking of individuals. This approach does not allow its citizens to opt out of the contact tracing scheme. Only a few other jurisdictions, including IsraelFootnote ^26,Footnote ²⁷ and China,Footnote ²⁸ appear to have taken this approach. In Korea, government agencies are granted a broad authority to process personal data during a pandemic for epidemiological purposes. Under the current provisions of the CDPCA, the Korea Disease Control and Prevention Agency (KDCA)Footnote ²⁹ and municipal or/and local governments can, at the outbreak of an infectious disease, collect, profile, and share several categories of data that pertain to individuals who test positive or individuals who are suspected of being infected.Footnote ³⁰ The data that can be collected include geolocation data; personal identification information; medical and prescription records (including the Drug Utilization Review [DUR]); immigration records; card transaction data for credit, debit, and prepaid cards; transit pass records for public transportation; and closed-circuit television (CCTV) footage.Footnote ³¹ In this context, ‘individuals who are suspected to be infected’ mean those who have been in close proximity to confirmed individuals, those who entered the country from a high risk region, or those who have been exposed to pathogens and other risk elements.Footnote ³² These individuals can be required to quarantine.Footnote ³³ The CDPCA explicitly stipulates that the request of geolocation data under this law overrides the otherwise-applicable consent requirements under the LIA and CSPA.Footnote ³⁴

The KDCA can share the foregoing data with (i) central, municipal, or local governments, (ii) national health insurance agencies, and (iii) healthcare professionals and their associations.Footnote ³⁵ The KDCA must also transfer a part of the data, including immigration records, card transaction data, transit pass records, and CCTV footage, to national health insurance information systems and other designated systems.Footnote ³⁶

Despite this legal mandate and authority, however, in practice, the scope and breadth of the data processed for contact tracing purposes and the recipients of the shared data have been much narrower, as explained in Subsections 3 and 4.

3. Legal Basis for QR Code Tracking

The amendment to the CDPCA of 4 March 2020Footnote ³⁷ authorized the KDCA, the Ministry of Health and Welfare, and municipal and/or local governments to issue decrees to citizens ‘to keep the list of administrators, managers, and visitors at the venues or facilities having the risk of spreading infectious diseases’.Footnote ³⁸ This new provision enabled the KDCA to deploy an electronic visitor list system by utilizing QR (quick response) codes.

4. Legal Basis for the Disclosure of the Routes of Confirmed Cases

Under the CDPCA, at the outbreak of a serious infectious disease, the KDCA and municipal and/or local governments must promptly make the following information publicly available on the Internet or through a press release: the path and means of transportation of confirmed cases; the medical institutions that treated the cases; and the status of relevant close contacts.Footnote ³⁹ Anybody can appeal if the disclosed information is incorrect or if there is any opinion. From this appeal, if deemed needed, the KDCA or municipal and/or local governments should immediately take necessary remedial measures such as making a correction.Footnote ⁴⁰

This provision allowing for public disclosure of information is an important exception to the principles set forth under Korea’s data protection laws. This provision was introduced in the CDPCA in 2015 following the MERS outbreak. At the time, epidemiologists first requested the government to disclose the information about the hospitals that treated confirmed cases and also about the close contacts in order to protect healthcare professionals from the risk of infection.Footnote ⁴¹ The public opinion also urged the government to ensure transparency by disclosing whereabouts of confirmed cases.Footnote ⁴² In response, the government disclosed the list of the hospitals that treated confirmed cases on 5 June 2015, breaking the non-disclosure principle for the first time. A bill for the foregoing provision was submitted on the same day and was passed by the legislature on 6 July 2015.Footnote ⁴³ The bill was passed within a very short period of time and, as such, there was insufficient time to consider and debate privacy concerns and other important implications that would arise from the amendment. Following the outbreak of COVID-19 in 2020, this provision was immediately triggered, raising considerable privacy concerns as explained below in Sub-section V 2.

5. Legal Basis for Quarantine Monitoring

The amendment to the CDPCA of 4 March 2020Footnote ⁴⁴ authorized the KDCA and municipal and/or local governments to check the citizens for symptoms of infectious diseases and to collect geolocation data through wired or mobile communication devices.Footnote ⁴⁵ This new provision enabled the KDCA to track GPS data to monitor those quarantined at home.

Prior to this amendment, the quarantine monitoring app had already been in use. During this period, in order to comply with the consent requirements for the collection and use of personal geolocation data under the LIA, the app to be used for monitoring purposes made a request to an installer to click on the consent button before installation process starts. Because installing the monitoring app and providing the requisite consent allowed one to avoid the inconvenience of being manually monitored by the quarantine authorities or of facing the possibility of being denied entry into the country, most individuals who were subject to quarantine appear to have chosen to use the app. It was not entirely clear whether such involuntary agreement to download and activate the app constitutes valid consent under the LIA, and the foregoing amendment to the CDPCA clarified the ambiguity by explicitly allowing the collection of geolocation data for quarantine monitoring purposes.

1. Use of Smart City Technology for Contact Tracing

Based on the mandate and authority under the CDPCA, the Korean government launched the COVID-19 Epidemic Investigation Support System (EISS) on 26 March 2020.Footnote ⁴⁶ By swiftly remodeling the EISS from the existing smart city data hub system developed by several municipal governments, Korea could save time during early days of the pandemic. Prior to the outbreak of COVID-19, in accordance with the Smart City Act,Footnote ⁴⁷ the Korean central and municipal and/or local governments had been developing and implementing smart city hubs; several ‘smart cities’ have been designated as test beds for innovation in an effort to foster the research and development in areas related to sharing-economy platforms, AI services, Internet-of-Things technologies, renewable energy, and other innovative businesses. In relative terms, compared to a situation in which systems developed for security service agencies are redeveloped and used for contact tracing purposes, the use of a smart city system might have the advantage of heightened transparency and auditability.

The EISS collects requisite data pertaining to confirmed cases and those who are suspected to have been in contact. Data that can be collected includes base station data from mobile carriers and credit card transaction data from credit card companies. In order to obtain data, clearances should be obtained from the police and from the Credit Finance Association (CREFIA), respectively, for base station data and for credit card transaction data. After clearances are obtained, transfer of the data to epidemiological investigators takes place on a near real-time basis.Footnote ⁴⁸ Equipped with base station data and credit card transaction data, epidemiological investigators can effectively track many of the confirmed cases and their close contacts, as Korea is reported to have the highest penetration rate in the world for mobile phones and for smart phones, respectively at 100% and 95% as of 2019 (Figure 18.2).Footnote ⁴⁹

Figure 18.2

The COVID-19 Epidemic Investigation Support System

Note: MOLIT, ‘COVID-19 Smart Management System (SMS), formally named ‘COVID-19 Epidemic Investigation Support System (EISS)’ (MOLIT, 6 December 2020), https://smartcity.go.kr/ (hereafter MOLIT, ‘COVID-19 Smart Management System’).

In addition to the EISS, epidemiological investigators at municipal or local governments can, upon request, be given access to the DUR by the KDCA. Under ‘normal’ circumstances, a main use of the DUR would be to give useful information about various drugs to the general public and to those engaged in the pharmaceutical supply chain. In the context of COVID-19, the DUR could further be used for obtaining requisite tracing data.

2. Use of QR Codes for Tracking Visitors to High-Risk Premises

On 10 June 2020, shortly after the 2020 amendment to the CDPCA came into force, Korea further launched a QR code-based electronic visitors’ log system to track visitors to certain designated types of high-risk premises such as restaurants, fitness centers, karaoke bars, and nightclubs. This system was deployed with the help of two large Internet platform companies, Naver and Kakao, and of mobile carriers through an app called Pass (Figure 18.3).

Figure 18.3

The KI-Pass, a QR code-based electronic visitor booking system

Note: Naver Corporation, ‘QR Check-In’ (NAVER, 2020) https://m.help.naver.com/support/contents.

With this system in place, for instance, a visitor to a restaurant must get an ephemeral QR code pattern from a website or mobile app provided by the Internet platform companies or mobile carriers, and have the pattern scanned using an infrared dongle device maintained by the restaurant, typically at the entrance.Footnote ⁵⁰ That way, QR code-based electronic visitor lists are generated and maintained for these premises (KI-Pass). Maintaining this tracking system could, however, raise concerns over privacy or surveillance. In order to address these concerns, identifying information about the visitors is kept separately from the information about individual business premises. More details about this bifurcated system are provided in Sub-section IV 2.

3. Public Disclosure of the Routes of Confirmed Cases

Routes of confirmed cases are disclosed on the websites of the relevant municipal and/or local governments, in a text or tabular form. No enhanced technology is used for the disclosure. The disclosed information is also sent to mobile phones held by nearby residents as an emergency alert message in order to alert them of the possible exposure and risks.

4. Use of GPS Tracking Technology and Geographic Information System (GIS) for Quarantine Monitoring

The CDPCA also grants authorization for quarantine measures to government agencies. Thus, a 14-day quarantine requirement was introduced for (1) individuals who are deemed to have been in close proximity to confirmed casesFootnote ⁵¹ and (2) individuals who arrive from certain high-risk foreign countries.Footnote ⁵² To monitor compliance, those who are under quarantine are required to install and run a mobile app called the ‘Self-Quarantine Safety Protection App’ developed by the Ministry of the Interior and Safety. The app enables officials at competent local governments to track GPS data from smart devices held by those quarantined on a real-time basis, through the GIS, in order to check and confirm whether they have remained in their places of quarantine. Also, quarantined individuals are expected to use the app to report symptoms, if any, twice a day (Figure 18.4).

Figure 18.4

User interface of the Self-Quarantine App

Note: Google Play Store and Ministry of the Interior and Safety, Self-Quarantine Safety Protection App, https://play.google.com/store/apps/

1. Centralized Contact Tracing

Personal data including geolocation data of an individual flows within the EISS in the following steps: (i) the KDCA or municipal and/or local governments make a request; (ii) the police and/or the CREFIA give clearances to the transfer of mobile base station data and/or credit card transaction data, respectively; (iii) mobile carriers and/or credit card companies provide data as requested; (iv) epidemiological investigators review and analyze data pertaining to confirmed cases; (v) the investigators verify and obtain further information through interviews with confirmed cases; (vi) the investigators further conduct epidemiological network analysis and identify epidemiological links regarding the spread of COVID-19; and (vii) the KDCA and municipal and/or local governments receive relevant data and implement necessary measures such as quarantine or the disinfection or shutdown of premises where confirmed individuals visited.Footnote ⁵³

In the whole process, mobile base station data plays a crucial role for tracing purposes. Mobile base station data contains the names and phone numbers of the individuals who were near a specific base station. Exact location data were not collected, although collecting such data would have been technically feasible through triangulation using latitude or longitude data. However, as mobile base stations are installed at an interval of 50 to 100 meters in a downtown of a densely populated city such as Seoul, base station data can be considered precise enough for the purpose of identifying those who stayed near a confirmed case. At the same time, because the geographic coverage of a base station could be rather broad, there could be an issue of over-inclusion, with implications on privacy.

2. QR Code Tracking

An outbreak in May 2020 was investigated and found to have an epidemiological relationship to a night club located in the Itaewon district, in Seoul. When this outbreak became serious, efforts were made to locate the individuals affected and to conduct interviews so that further preventative measures could be deployed. However, only 41.0% of individuals, (i.e., 2,032 out of 4,961 individuals), could be contacted by epidemiological investigators over the phone.Footnote ⁵⁴ This was mainly due to the fact that the visitor list was hand-written by the visitors themselves and that sexual minorities who visited the club wrote down false identifies and/or phone numbers for fear of being forced to reveal their sexual orientations. This inability to contact a larger number of visitors to a particular premise reinforced the view that paper visitor lists should be substituted, where possible, with electronic visitor lists, so that the accuracy of the information contained in the visitor lists can be all but guaranteed.

This hastened the development of a QR code-based electronic visitor list system, which was deployed on 10 June 2020.Footnote ⁵⁵ When a visitor has his or her QR code scanned by an infrared dongle device installed at a business premise, the manager of the business premise does not collect any personal data, other than the code itself. Under the system deployed in Korea, visitor identification information is held by the issuers of QR codes only, unless a need arises to confirm the identity for epidemiological purposes. Specifically, one of the three private entities which issue QR codes holds visitor identification information: Internet platform companies Kakao and Naver and mobile carriers who jointly developed the app named Pass. Data directly related to business premises are held by the Social Security Information Service (SSIS). That is, the SSIS collects the following data: the name of the business premise, time of entry, and encrypted QR codes. The SSIS does not hold any personally identifiable data in this context.Footnote ⁵⁶ That way, relevant data are kept separately, and a bifurcated system is maintained. When a report is made that a visitor to a business premise is confirmed positive, the bifurcated datasets are then combined on a need basis in order to retrieve the relevant contact information, which is transmitted to the EISS. The transmitted information is then used by the KDCA and municipal and/or local governments for epidemiological investigations. The data generated by QR-code scanning is automatically erased after four weeks.Footnote ⁵⁷

3. Public Disclosure of the Routes of Confirmed Cases

As explained above, municipal and/or local governments receive geolocation data and card transaction data from the EISS and disclose a part of the data to the general public. At an earlier stage of the COVID-19 outbreak, very detailed routes of confirmed cases were disclosed to the public. These disclosures did not include the names or other personally identifiable information of the confirmed individuals. What was revealed typically included a pseudonym or part of the full name of the infected individual as well as sex and age. In addition, vocation and/or area of residence was often disclosed. Although directly identifiable personal information was not disclosed, sometimes simple investigation and profiling would enable re-identification or reveal personal details. Certain individuals indeed became subject to public ridicule, after their identities were revealed. Debates on privacy followed, and the KDCA revised its guidelines about public disclosure of information on contact tracing. As a result, municipal and/or local governments are now disclosing much more concise information focusing on locations and premises rather than on an individuals’ itinerary. Also, disclosure information is deleted after fourteen days following disclosure. One of the examples is as shown in Table 18.1.

4. Quarantine Monitoring

The self-quarantine app collects GPS data from mobile devices and shares it with the GIS, so that an official at the local government can monitor the location of a quarantined individual on a real-time basis.

1. Centralized Contact Tracing (including QR Code Tracking)

An early response is critical to contain the spread of highly infectious diseases such as COVID-19. In turn, the effectiveness of such a response relies on the prompt collection and sharing of accurate data about confirmed cases and close contacts. Manual epidemiological tracing has serious limitations. It takes time for human investigators to conduct manual tracing, causing delays. Also, manual tracing is vulnerable to faulty memory or deception on the part of interviewees, resulting in inaccurate epidemiological reports.

In response to the rapid spread of COVID-19, Korea chose to integrate such human efforts with a technology-driven system of data processing. For example, a prompt compilation of geolocation data has been a crucial enabling factor in Korea’s contact tracing strategy. The EISS, which makes use of the smart city technology, allowed public health authorities to efficiently allocate valuable resources. With the assistance of technology, for instance, epidemiological investigators were able to conduct tracing in a more effective and efficient manner.

At the same time, questions were raised whether the centralized contact tracing model adopted in Korea was overly intrusive, even harmful to fundamental freedoms constituting the very cornerstones of a democratic society. The collection of data has sometimes been equated to mass surveillance, raising privacy concerns as well. This line of criticism would have a clear merit, if certain other alternative tracing systems show the same or even higher level of efficacy, while collecting less granular and less detailed personal data.

The problem, however, is that, while a decentralized system such as the Bluetooth-based approach is in general better in protecting privacy, it has its own shortcomings that are yet to be solved. First, a tracing app needs to attain a certain penetration rate, in other words, the proportion of active users of the mobile app among the whole population should be sufficiently high for a tracing system to function properly. In order to achieve the so-called digital herd immunity this penetration rate should be fairly high – sometimes set at 60 to 75%.Footnote ⁵⁹ To date, most countries have failed to achieve this level of penetration rate, due to, among other things, low levels of smartphone penetration rates. Second, Bluetooth-based proximity tracing may not work effectively in crowded areas that are in fact prone to experience explosive outbreaks of infectious diseases such as COVID-19. Third, decentralized models generally do not allow for human-in-the-loop based verification and tend to show excessively high false positives.Footnote ⁶⁰ Fourth, iOS does not allow third-party apps running in the background to function properly in order to broadcast Bluetooth signals, unless the AGEN system is deployed.Footnote ⁶¹ Fifth, for a fully decentralized approach, there would be no informational benefits to public health authorities because relevant information simply does not flow to public health authorities. While this could be beneficial in maintaining the privacy interests of citizens, at the same time, precious opportunities for gaining epidemiological data would be lost. Lastly and perhaps most fundamentally, the decentralized approach has to rely on good-faith cooperation by confirmed individuals. That is, the approach would not work unless confirmed individuals make voluntary reports and, as such, this approach exhibits a similar problem as in a manual tracing method.

This is not to say that a centralized model would always be preferable. While a decentralized approach may not lead to a herd immunity, it could nonetheless play a complementary role in containing the spread of COVID-19, particularly in densely populated areas such as city centers and on university campuses. Thus, as a general matter, a centralized approach and a decentralized approach each have their own strengths and limitations. For a centralized approach, its main strengths would include: immediate availability undeterred by the penetration levels; effective response to mass infection; no compatibility concerns; and most importantly, impactful contribution to epidemiological investigations.

In the case of Korea, there is no denying that contact tracing and other tracking mechanisms were a crucial component in the whole apparatus dealing with daunting challenges caused by COVID-19. Also, overall, Korean society at large complied with the requirements imposed by these tracking mechanisms, without raising serious privacy concerns. If we go one step further, there could be various viewpoints and reactions as to why Korean citizens in general complied with the measures adopted by the government.

In terms of data protection, the PIPA was enacted in 2011 and earlier statutes also contained various elements of data protection. Separately, the Constitutional Court of Korea, in 2005, declared that the right to data protection is a constitutional right. As such, Korean citizens are in general well aware of the value of data protection in modern society. In adopting technology-based contact tracing mechanisms and complying with the requirements associated with such contact tracing mechanisms, it can be said that the Korean society as a whole made a wide-ranging value judgement about privacy, public health, and other social and legal values. Among other things, citizens exhibited a striking willingness to cooperate with authorities in their efforts to collect epidemiological data including geolocation data, which can be traced back to their previous experience with the MERS outbreak. Utilizing new technologies for epidemiological purposes was perhaps not much of an additional concern as, in relative terms, many Koreans are at ease with adapting to new technological environments.

This does not mean, however, that the data collection was without controversy. On the contrary, several activist groups joined forces and filed a constitutional petition seeking the Constitutional Court of Korea’s decision regarding the constitutionality of contact tracing mechanisms.Footnote ⁶² More specifically, the petition challenges the constitutionality of the CDPCA provisions which enabled contact tracing in the first place.Footnote ⁶³ It also views the government’s collection of mobile base station data based on these provisions unconstitutional, in particular pointing to the collection of data about the visitors at a night club in the Itaewon area during an outbreak, as doing so violates, among other things, the constitutional right to self-determination of personal data.Footnote ⁶⁴ This petition grounds itself on the Court’s 2018 decision that held the collection of the identities of mobile subscribers that accessed a particular base station in the course of criminal investigation unconstitutional.Footnote ⁶⁵ Regardless of the outcome of this case, the scope of geolocation data might need to be adjusted to balance epidemiological benefits with privacy.

In the case of QR codes, the bifurcated approach perhaps helps mitigate security risks and privacy concerns, by separating personally identifiable data from visitor logs and by combining them only when necessary for epidemiological investigation. Also, while both a paper form for visitor logs and a QR-code based electronic log system are usually available at business premises, the general public appears to prefer the QR code-based electronic visitor log system. Part of the reason would be the trustworthiness of the QR-code system. That is, while there is virtually no concern over possibilities of data breach for a QR code-based electronic visitor log system, a paper visitor list could be vulnerable to illegal leakage by employees of business premises or by subsequent visitors.Footnote ⁶⁶

About the contact tracing mechanism in general, there could be a concern over possibilities of ‘function creep.’ The concern is that, while conducting contact tracing under the current extraordinary circumstances of COVID-19 could be justified, after the pandemic is over, the government may be tempted to use this mechanism for surveillance purposes. In the case of Korea, there are two built-in safeguards against this from happening. First, data collection for epidemiological purposes is under the sole purview of the KDCA and the relevant databases are maintained by the KDCA as well. This means that, even if the government is tempted to divert the system for different purposes, doing so would be a cumbersome procedure simply because the system is maintained and held by a single public health agency with a narrow public health mandate. Second, the KDCA’s authority for the current data collection is, for the most part, derived from statutory provisions contained in the CDPCA and not from the PIPA, a general data protection statute. After the pandemic is over, the KDCA or any other government agencies would require a separate statutory rationale in order to collect data.

Compared to the Korean government’s active role in utilizing technology to cope with the COVID-19 pandemic, public-private collaboration based on the sharing of public data and the use of open APIs (application programming interfaces) in Korea has somewhat lagged. There have been recent cases of meaningful contributions from the private sector, however. An example would be a collaborative dataset sourced from public disclosures, which has been actively used for visualization purposes and also for machine learning training purposes.Footnote ⁶⁷

2. Public Disclosure of the Routes of Confirmed Cases

Unlike contact tracing itself, which was generally accepted as a necessary trade-off between privacy and public health in facing the pandemic, the public disclosure of the routes of confirmed cases quickly became controversial due to privacy concerns. Such public disclosures were, in fact, another policy response from the experiences of the MERS outbreak. That is, during the MERS outbreak, there was great demand for transparency and some argued that the lack of transparency impeded an effective response. However, with the onset of the COVID-19 outbreak, the pendulum swung in the other direction. Not just the detailed nature but also the uneven scope and granularity of disclosures among the KCDA and the numerous municipal and local authorities caused confusion, in particular during the initial phase. Concerns were not limited to the invasion of privacy. Private businesses, such as restaurants and shops, that were identified as part of the routes often experienced abrupt loss of business.

These concerns were encapsulated in the recommendation issued by the National Human Rights Commission (NHRC) on 9 March 2020.Footnote ⁶⁸ The NHRC expressed concerns about unwanted and excessive privacy invasion as well as secondary damages such as public disdain or stigma, citing a recent survey showing that the public was even more fearful of the privacy invasion and stigma stemming from an infection than the associated health risk itself.Footnote ⁶⁹ The NHRC noted that excessive public disclosure could also undermine public health efforts by dissuading those suspected of infection from voluntarily reporting their circumstances and/or getting tested for fear of privacy intrusions.Footnote ⁷⁰ The NHRC further recommended that route disclosures be made in an aggregate manner focusing on locales at issue, rather than disclosing the times and places of visits at an individual level and possibly revealing personal itineraries.Footnote ⁷¹

In response to the NHRC’s recommendations, the KDCA issued its first guidelines regarding public disclosures to municipal and local governments on 14 March 2020, which limited the scope and detail of the information to be made publicly available. Specifically, the KDCA (i) limited the period of route disclosure from one day prior to the first occurrence of symptoms to the date of isolation, (ii) limited the scope of visited places and means of transportation to those spatially and temporally proximate enough to raise concerns of contagion, considering symptoms, duration of a visit, status of contacts, timing, and whether facial masks were worn, and (iii) banned the disclosure of home addresses and names of workplaces. On 12 April 2020, the KDCA further revised the guidelines. Under the revised guidelines, (i) information on routes should be taken down 14 days after the confirmed case’s last contact with another individual, (ii) information on ‘completion of disinfection’ should be disclosed for relevant places along the disclosed routes, and (iii) the period of route disclosure should start from two days prior to the first occurrence of symptoms.Footnote ⁷² One complication from public disclosures of information is that, once a disclosure is made, the disclosed information is rapidly further disseminated via various social media outlets by individual users. Thus, data protection agencies have been actively sending out takedown notices to online service providers to ensure that such content is taken down following the 14-day period.

In May 2020, a spate of confirmed cases arose at a nightlife district in Itaewon, Seoul, that is frequented by persons with a specific sexual orientation. While public health authorities mounted a campaign urging prompt testing for those who could be at risk, it was ostensible that the fear of being forced to reveal sexual orientations or being socially ostracized was a significant deterring factor. In response, the Seoul Metropolitan government initiated anonymous testing from 11 May 2020, under which individuals were only asked for their phone numbers. The anonymous testing scheme expanded and began to be applied to the whole country on 13 May 2020.

After witnessing these debates, the KDCA issued further revised guidelines dated 30 June 2020. The latest guidelines provided that municipal and/or local governments should disclose the area, the type of premises visited, the trade names and addresses of these premises, the date and time of exposure, and disinfection status and that disclosures should not be made for each individual and his or her timeline but instead in the format of ‘lists of locations visited.’ The guidelines further stipulated not to disclose information regarding the visited places if all close contacts have been identified.Footnote ⁷³

Subsequently, an amendment to the CDPCA was made dated 29 September 2020 and this amendment, among others, included a provision that excludes from the scope of public disclosure the ‘sex, age, and other information unrelated to the prevention of contagious disease as stipulated in the Presidential Decree.’Footnote ⁷⁴ The current Presidential Decree for the CDPCA lists the name and detailed address as examples of such ‘other information unrelated to the prevention of contagious disease.’Footnote ⁷⁵

The above shows the ongoing process of trial and error in search of a more refined approach which would better balance the imperatives emanating from public health concerns during a pandemic with privacy and other social values. Urgency of the situation perhaps made it imperative to implement swift measures for gathering information. While implementing swift measures is inevitable, it is also important to review the legitimacy and efficacy of these measures on an ongoing basis and to revise if needed. For instance, compared to the disclosure of precise routes profiled for each confirmed case, the disclosure of aggregated route information has proven sufficient to achieve the intended public health policy goals. As demonstrated in the Itaewon Case, a less privacy-intrusive alternative can also assist infection control efforts by encouraging voluntary reporting and testing.

Regarding the disclosure of the names and addresses of business premises, assuming that disinfection can effectively address contagion risks, the only benefit would be to alert other visitors and to encourage them to self-report and get tested. Therefore, if all visitors are in fact identifiable through contact tracing, the public disclosure of the type of business and the broader area of the location, rather than identifying the name of the specific business premise, would be sufficient for purposes of public health. In fact, revisions to the KDCA guidelines were made reflecting practical lessons learned throughout 2020 and provide for deletion of data that is unnecessary or no longer necessary.

3. Quarantine Monitoring

Human surveillance of quarantined persons is often costly, ineffective, and in many cases inevitably intrusive. The quarantine monitoring through GPS tracking has generally been regarded as a more effective but less intrusive substitute for the human surveillance. As such, there have not been serious privacy concerns raised about quarantine monitoring.

4. Data Governance

On a regulatory front, the outbreak of COVID-19 has highlighted the need for Korea’s privacy and data protection authorities to be ever more vigilant during public emergencies. In February 2020, Korea undertook a major reform to its privacy and data protection laws which came into effect as of 5 August 2020. As a result of the amendments, Korea’s data protection authority will be consolidated and vested in the Personal Information Protection Commission (PIPC). This reform is expected to allow the PIPC to engage in a more proactive role in balancing the rights of data subjects with public health goals and to provide clearer guidance as to what to disclose and how to de-identify when making public disclosure.

On a broader level, in terms of the flow and provenance of data, two general directions can be distinguished. One direction is from the general population to public health authorities. Data gathered and shared in this direction is mainly done in order to carry out contact tracing, to conduct epidemiological analyses, and to devise and implement public health measures. At the same time, data flows toward the other direction as well, from the government and public health authorities to the general public. What is carried out in this context is mostly public disclosures of data about confirmed cases. Doing this would presumably be helpful for purposes of enhancing transparency and giving alerts so that citizens can prepare.

Regarding both directions of data flows, there are tensions between public health purposes and privacy interests: gathering and disseminating detailed information would in general be helpful in containing the spread of COVID-19, while, at the same time, doing so could be detrimental to the protection of the privacy of citizens. Details of the tensions, however, are different between the two directions of data flows. When data flows from the general public to public health authorities, a major concern would be the possibility of surveillance. Seen from a public policy perspective, attention would thus need to be paid as to whether and how a possible concern over surveillance could be assuaged. Putting in place systematic and procedural safeguards could be helpful. On the other hand, when data flows from public health authorities to the general public, mostly in the form of public disclosures of data about confirmed cases, concerns could be raised about the privacy of citizens. A privacy concern in this context could arise due to the possibility of the revelation of unwanted or embarrassing personal details. The risk could be elevated, if there is an added motivation for a public officer to gain attention through media, by leaking a ‘headline grabbing’ news item. In that regard, attention may need to be paid as to what data is made available to public sector officers.