The simple fact is that diseases do not respect national boundaries; they cross borders with no regard for the devastation that they may wreak and there may or may not be an initial warning sign that they are present. As a result, the threat of infectious diseases as well as their actual spread, will more often than not require significant restrictions on individual liberty as a means of protecting public health. In looking at the moderate end of this spectrum potential measures include temperature screenings and/or similar health checks for travelers. Based on the result of these checks a traveler may be unable to travel because it is either believed or known that they present a public health risk. However, on the opposite end of this spectrum what we are faced with are more extreme measures including compelling healthcare professionals to breach
doctor-patient confidentiality by notifying the relevant authorities of the details of an affected patient. In such an instance, it may be necessary for the freedom of this patient to be restricted until they are so longer infectious. Similarly, another extreme measure may be the
implementation of a quarantine. While there exist clear examples of situations where the potential harm that an individual or individuals may cause to others requires compulsory measures as a means of controlling the action of those who may fail to act in a manner that is responsible and considerate of others, there is still a potential dilemma that exists. This dilemma centers around the questions of precisely how high the likelihood of harm should be in order for it to trigger restrictions as well as what degree of restriction can be justified by the action. In taking a proportional view the balance between harms and benefits needs to be maintained in order to ensure that the panic over the spread of the disease is not the cause of unfair
restrictions.68 It is in this way that by their very nature the utilization of restrictive measures such as quarantine can serve to highlight the opposing arguments between absolute personal
autonomy and the collective rights of the community.69 Specifically, what is revealed is that it is not, or rather cannot, be a matter of either/or, but that instead what must be found is a tenuous balance between both.
The stark reality is that by their very nature medical quarantines often serve to threaten the civil rights of those that they confine. Such threats generally present themselves in one of two ways.
First, there is the potential that the quarantine will inflict harsh conditions on those that are being quarantined.70 While what is considered harsh can vary based on the individual in recalling that even within the United States there do not exist universal provisions relative to safety of
quarantines or directives requiring that they all meet the standards to be considered humane, there exists a wide array of unpleasant possibilities. Second, there is the chance that quarantine
may be imposed in a manner that is either arbitrary or discriminatory in nature.71 This can be viewed as being especially plausible in situations where large-scale geographic quarantines are implemented or in instances where specific populations are targeted either because of a
predisposition to being infected with a certain type of disease or a belief that it is likely to be more prevalent in their community. While such concerns may seem too broad or otherwise overblown it is important to understand that because of their tie to infectious disease that they are not. In general, infectious diseases, especially when they are presented as epidemics serve to commonly trigger instincts that are both retributive and discriminatory. As a result, quarantines which are meant to improve or at least protect, public health, in fact often lead to the individuals being quarantined being treated in a manner that is inhumane, stigmatizing, or even penal based on factors that have nothing to do with public health such as the whim of a public health official or someone acting in their stead or even prejudice.72 What this serves to mean is that quarantines and their implementation are presently designed, utilized, and governed in such a way that even what many individuals would consider basic protections are in fact neither guaranteed or even required as a matter of course.
In focusing on the basic provisions that quarantine does not have to provide as a matter of protecting personal civil liberties focus can be placed on the concept of “negative liberty”.
While not a standard term the United States Constitution is often referred to as promising
“negative liberty”. This can be presented in two ways, both of which serve to define the term and both of which are valid. First, the term “negative liberty” is reflective of the distinction between freedom from (negative) and freedom to (positive). For example, there does not exist any federally mandated right to food, shelter or healthcare. This is due to the fact that the
Constitution does not require that the federal government act as a provider of these things to its
citizens; however in other countries their constitutions declare that the government is responsible for these things.73 Salient to the implementation of quarantine this aspect of negative liberty can be applied in that even in quarantining an individual the responsibilities of the government or other official entity quarantining them do not serve to extend beyond the responsibilities that they would have for or toward that person under circumstances that were not a public health emergency. Such a reality not only underscores the ways in which civil liberties can be ignored in a quarantine situation but also serves to provide a justification for these actions. Second,
“negative liberty” can also be used to denote that while the Constitution seeks to protect individuals from actions that originate with or are undertaken by the government that such protections do not extend to actions that are taken by private parties like corporations. The rationale for this provision was that the framers of the Constitution had a fear that the powers of the government could be used to either overwhelm or suppress individual liberties. This clearly does not mean that there are no laws in place that restrict the actions of private individuals or entities, instead it means that they must fall within specific statutes.74 The need for those restrictions to fall within certain statues serves to limit what, if any actions, can legally or feasibly be undertaken in instances where an individual has their civil liberties violated as the result of a quarantine that may be implemented on a local level such as at in an industrial setting following the release of a chemical into the warehouse.
Thus, far the violation of civil liberties has only been discussed in an abstract context.
However, there do exist specific examples of where violations have occurred. One example stems from a quarantine that occurred in 1900 in San Francisco. Another example is from a 2003 quarantine in Singapore. The significance of these two examples within the context of this work centers around the fact that they come from two separate centuries and two separate countries.
This fact helps to illustrate both the historical and contemporary ways in which quarantines have violated civil liberties, and showcases the fact that such violations are not unique to a single country.
First, focus can be placed on San Francisco in 1900. On March 6, 1900 after the death of Chinatown resident Chick Gin, the city of San Francisco implemented a geographic quarantine that extended across the entire twelve block radius of the neighborhood effectively trapping the residents inside its borders. There are several aspects of this quarantine that are especially important to consider. First, the implementation of the quarantine occurred days before lab tests were able to provide confirmation of the initial diagnosis: bubonic plague. Second, out of the 35,000 residents of who lived in Chinatown, significantly less than 1% of the population was actually revealed to be infected. In fact, only 4 individuals were actually ill. Third, during the quarantine the residents were treated incredibly poorly. The San Francisco Health Department spent weeks attempting to inspect and disinfect every home and building in Chinatown. In working to try and accomplish these individuals were thrown out of their homes, personal property was confiscated and burned, and those who were deemed uncooperative were beaten.
Additionally, while the Chinese residents of the neighborhood were restricted from leaving Chinatown, whites were allowed to come and go in and out of the area without any restriction on their movements. Additionally, it took the actions of an outsider to raise funds to ensure that food was provided to those who were quarantined. Finally, the Chinese were ultimately forcibly inoculated with the Haffkine vaccine. This vaccine was largely experimental in nature and in addition to the fact that it was not known to be an effective measure it also caused serious side effects.75 In viewing this quarantine objectively it seems like an act of blatant xenophobia, and by extension prejudice against, the Chinese residents of San Francisco. This is made apparent
when it is noted that in the event that it was believed that there was a legitimate public health threat that individuals from outside of the neighborhood would have been forbidden from entering and exiting it freely in the same manner that the movements of the residents were restricted.
Second, consideration can be given to Singapore in 2003. During the SARS outbreak in this country individuals who were quarantined were required to appear routinely in front of web cameras that had been installed in their homes. Any failure to appear in front of the web camera were then made to wear electronic bracelets. This practice both violated the liberty of the quarantined individuals, but it also publicly identified those who were under quarantine serving as a breach of confidentiality.76 Without disputing the potential viability of electronic
monitoring as a measure for ensuring that quarantine remains unbroken what must be considered is the particularly invasive nature of a practice that required the installation of web cameras into the homes of those being quarantined. The security risks of webcams are significant. First, early webcam models were insecure by default as a result existed websites which offered thousands of viewing options for these streams.77
In serving to highlight how important civil liberties are it must be noted that as of 2014 current quarantine laws were in the process of revision due in part to the ways in which the issues of quarantine are reflective of the myriad of tensions between the rights of the individual versus the rights of society as a whole.78 However, as evidenced by the revised Quarantine Act in Canada there does not exist any guarantee that such revisions will actually serve to address underlying issues or provide any significant remedy.