See-saw Balance of Location Data Disclosure under Public Health Emergency: Right to Health and Right to Privacy

Xing Xin

Abstract：Location data disclosure， which has three-level significant values for control and prevention of COVID-19， has achieved great success， while it triggers the internal tension between the public health rights and individual privacy rights. By using comparative analysis， there are three different models for location data disclosure： （1） Geographic location data disclosure model; （2） Disclosure location data to special individual model; and （3） Individual location data disclosure model. Under those models， governments are enabled to balance location data disclosure regarding the right to health and privacy; however， it is still a tough legal issue in the Information Age. To balance the right to health and privacy under public health emergencies， the following three steps can be considered. First， public health shall be the primary goal under public health emergencies. Then， location data disclosure shall be evaluated in terms of the right to health; it is important to identify the scope of location data disclosure， which can only use by the government under public health emergency. Lastly， the legal requirements of using location data need to be clarified and emphasize the data deletion period and the right to be forgotten after COVID-19.

Key words：location data; public health emergency; right to health; right to privacy

CLC： D 912 ? ? ? ? ?DC： A Article ID： 2096-9783（2021）04-0116-11

In the World Health Organization （WHO） Coronavirus Disease （COVID-19[1]） Situation Report， as of March 7th， 2021， it shows over 116 million confirmed cases and 2.6 million associated deaths[2]， counting in 222 countries or regions worldwide[3]. The United Nations （UN） Secretary-General António Guterres has claimed this health event as the historical global health crisis of the last 75 years[4]. Meanwhile， the Dow Jones industrial average has triggered a key circuit breaker four times in just nine business days; one-third of the global population have been issued a Stay-Home-Order[5]; even the 2020 Tokyo Olympic Games has been postponed an entire year[6]. The impacts of COVID-19 are so tremendously severe that it has become the worst public health emergency issue known to the world.

In order to control and prevent the pandemic adverse impacts of COVID-19 on economic and social development， several governments around the world have taken various measures to deal with this challenge. For example， in South Korea， the government designed the screening points， which gave passengers tests without getting people off their vehicles， to prevent cross-infection[7]. Singapore built a cross-multiple governmental agency to enhance team cohesion inside of the government[8]. Israel disclosed location data （also named Geolocation data） to track who had close contacted with confirmed patients. Although all of these measures have achieved great success， there are still many legal concerns regarding location data disclosure and individual privacy protection， especially when the location data disclosure is in conjunction with the individuals' rights of health.

This article focuses on the internal tension between individual health rights and privacy rights， based on the relationship in these rights， determining whether the government should disclose the location data under public health emergency， and the scopes and limitations of this method enforcement. The first part will give a brief introduction to the relationship between location data and public health， and point out three-level values， to illustrate why many governments want to disclose location data during the COVID-19 crisis. The second part will lay out measures and models used by several countries. This part will also analyze the advantages， disadvantages， and potential legal issues of disclosing location data. The third part will rethink whether the government should disclosure location data and point out the legal principles of how to balance the right to health and the right to privacy under public health emergencies.

1 The Significant Values of Location Data under COVID-19

1.1 Health Data， Location Data and Public Health

In today's world， Big-Data[9] is a game-changing tool that changes data collection and integration in modern reform of health systems[10]， especially in the field of public health. The health data[11] system generally collects and uses data for the one who provides that data， for example， health data in different healthcare entities is to improve the efficiency of diagnosis and the effect of treatment. In this situation， although its disclosure will promote the research and development of medicine[12]， the legal value for individual personal data is individual-based. In other words， health information cannot be disclosed without patient consent， while it may also have some exceptions in the legal acts. In the United States， the Health Insurance Portability and Accountability Act of 1996 （HIPAA） is a regulation that "protection individuals' privacy and security of certain health information"[13].

Different from Patient-Consent-Model， under a public health emergency， public health has much greater importance over personal privacy， and the legal relations are changed as well. Typically， under the Patient-Consent-Model the legal relation of health data is trilateral， where individuals are one party and healthcare institutions are the other two parties， including hospitals， data clearinghouses， or insurance companies， and so on. With patient consent， the two healthcare entities are enabled to share information for medical research and individual health[14]. However， in the public health emergency， the legal relations is multilateral， which includes government， the general public， healthcare institutions， and individuals， due to one of the duties of government is to protect its citizens[15]. Since the government has the duty to promote public health， there is no doubt the general public has the right to know the information regarding their health which may be collected and disclosed by the government. Hence， in the multilateral legal relation， it shows an internal tension between individual health rights and privacy rights. Typically， there are two conflicting values： one is the relationship between the government and ordinary citizens， government information disclosure， and citizens' right to know; and the other is the relationship between the patient and close contacts. It is the right to health among individuals. One of these is the protection of privacy in the right to health， and the other is the right to know in the right to health.

Location data means "information that can be used to identify an electronic device's physical location"[16]. In biology and ecology， it could also be referred to track the living entities[17]. Today， over five billion people in the world population have mobile devices[18]， which accounts for 64.9% of people on the planet. Due to the high ownership of the mobile device and a great number of people who carry their cellphone every day， location data can collect through the Global Positioning System （GPS）[19] chip in the smartphone or other device. However， few countries clearly define the location data in the statutes， such as Privacy and Electronic Communications Regulations （PECR） in the United Kingdom （UK）[20] and General Data Protection Regulation （GDPR） in European Union （EU）[21]. The United States has recognized it in practice， a number of judicial precedents have discussed whether the location data could be used in the investigation[22].

During a public health emergency， location data has its particular importance. Viral diseases， like COVID-19， can spread from an infected person "through small droplets from the nose or mouth" and other people can catch the virus simply by "touching these objects or surfaces， then touching their eyes， nose or mouth"[23]. Hence， once someone has close contacted with a sick person， it increases the possibility of catching the same disease and getting sick. If the government and the public have the knowledge of who has contracted with infected patients， it will help them to predict where the virus could hit next. That is why several governments want to disclose infected patients' location data， which enables them to monitor the spread of the virus and warn people who have close contact with a patient.

1.2 The Values of Location Data Usage

Data collection， analysis， and interpretation are essential for public health practice， especially using data control to prevent the spread of the epidemic[24]. Generally speaking， there are three values for using location data under public health emergency.

At the national level， data is an important basis for national governmental making-decision. Data management is the technical support for governing general public health and dealing with the changes of a public health emergency. With the technical support of "Internet Plus"[25] and other modern technology， during the infectious disease outbreak， location data can effectively track virus spread and predict the trend of the epidemic， which promotes scientific and efficient decision-making by the government in real-time. Due to the delay in information and analysis by manual means， traditional public health emergencies suffer scattered-data and delay-decisions. However， when the government uses location data， it not only cuts the time to make the decision but also provides sufficient location data to support its decision. Hence， it can make decisions more promptly and scientifically than in the previous model.

Under a public health emergency， location data plays an important role in healthcare institutions and their workers as well. Due to the medical resource strain， the main concern during public health emergencies is on allocating resources between regions and the patients in different degrees of seriousness of the condition. Since location data can effectively track the spread of COVID-19， it can also be used as the evidence of distribution. For example， in China， the first outbreak of COVID-19 was in the city of Wuhan and the more people who left from Wuhan during that time would increase the overall risk of the nation. A searching engine company， Baidu， which helped collect and analyze location data of people who left Wuhan[26]， worked out an estimated number and the destination. Based on those location data analyses， the healthcare institutions were able to scientifically distribute the medical supplies， such as surgical， N95 mask， and ventilators.

As for individuals， location data also gives patients more opportunities to monitor their own physical condition. For example， in early April， in the United States， several Arizona officials filed a lawsuit against the Arizona Department of Health Services and the Pinal County Health Department， asking for the share of non-personal identifiable information related to COVID-19 to reduce the public's psychological and mental stress[27]. In response， the Arizona Department of Health Services disclosured location data by zip codes， becoming more transparent for the public to know the situation in the community[28]. Through the location data disclosure， citizens can predict the risk to themselves， and this can meet their right to know and reduce their stress.

2 The Models for Location Data Disclosure in COVID-19

In the Information Age， especially in public health emergency， big data and artificial intelligence have played an active role in the mitigation and prevention of COVID-19. Typically， there are three different models for location data disclosure in the worldwide.

2.1 Geographic Location Data Disclosure Model

The geographic location data disclosure model means some countries disclose location to a great extent to warn citizens of the risks under COVID-19， such as France， the United States. Recently， aimed to reduce the impacts of COVID-19， the French government released location data and updates its data sources bases on regions and hospitals[29]. Meanwhile， in the United States， location data is based on the zip code to narrow the scope of data publication and adopt more precise methods to publish data[30]. Some companies also cooperate with the American government to contribute to COVID-19 screening， like Apple Inc.， which launched a website and smartphone application that provides guidelines by asking user questions regarding their travel plans and physical condition[31]. However， the shortcoming is this method did not include any infected patients' location data which has been released by the government.

The measure of location data disclosure protects the privacy of patients to the greatest extent， but it is slightly inadequate for the control and prevention of COVID-19. The core of virus transmission is close contact. The above method of publishing data in specific areas provides the public with access to information， however， this method is not enough to track the ranges of people who have been confirmed positive. In fact， information such as working in the same place or having dinner together in a small space can better reflect the transmission path of the virus and can be used to prevent and control the spread more effectively.

2.2? Disclosure Location Data to the Special Individual Model

A lot of countries recognize that it is not enough to control COVID-19 if the government only discloses general location data information， like France and America. Hence， the European Union （EU）， Singapore， and Israel attempt to disclose location data to the special individual model. The EU has clarified and extended its General Data Protection Regulation that now allows the member countries to track and disclose location data in order to control the spread of COVID-19 and send a message to people who once were in high-risk places. But it is still difficult to draw a clear line between location data disclosure to promote control and prevent virus spread and protect individual privacy. On March 19th， 2020， the European Data Protection Board （EDPB） issued the "Statement on the processing of personal data in the context of the COVID-19 outbreak". Section three specifically points out that member countries can send messages to people who were in high-risk areas exposed to viruses through mobile phone positioning， but must adhere to the principle of anonymization， which means "processing data aggregated in a way that individuals cannot be re-identified"[32].

In some Asian countries， the governments used a similar method to disclose. Singapore built a smartphone application， named Trace Together， which uses bluetooth technology to identity potential COVID-19 carriers， people who have been in close contact with patients infected by COVID-19. Israel issued an emergency act to Shin Bet Service which shares individual information to the Health Ministry and sends a message to people "who were in 6.6 feet of the infected person for 10 minutes or more" and all data is kept an additional 60 days after the termination of emergency[33].

Compared with the geographic location data disclosure model， the EU's measure， which directly sends messages to special individuals who might expose to high-risk areas， will be more effective to fulfill the right to know. But it has been a concern that this measure may not effectively protect the privacy of citizens. By using this method， everyone will be tracked in this special timeframe， which does not meet the proportionality principle in administrative law， that only the infected one should be tracked. To encounter challenges， the EU released another document "Coronavirus： commission adopts recommendation to support exit strategies through mobile data and apps" on April 8th， 2020. The European Commission provided a toolbox of guidelines for member countries to use location data technology in fighting the epidemic： firstly， it is to coordinate the EU's overall location data utilization measures and to warn， prevent， and release epidemic trajectory information to empower people to take effective and targeted social distance measures; second， through aggregated anonymous mobile location data， to construct and predict the EU's overall epidemic spread control model[34].

2.3 Individual Location Data Disclosure Model

Both the geographic location data disclosure model and disclosure location data to the special individual model are government-led models， which means governments disclose location data to the public proactively in both two methods. In the meanwhile， China and South Korea allow citizens to report or search the related information regarding their travel history. China government established and strengthened monitoring， exchange， aggregation， and feedback of data mechanism systems under COVID-19[35]. In order to limit the scope of location data disclosure， China's government established the self-service location data disclosure application， which is based on the information reported by individuals. By using this application， any individual， who suspects having COVID-19 symptoms， can search on the application， and find whether he/she was exposed in a high-risk place or close to any confirmed cases.

The below picture is a screenshot from the smartphone application， which is able to search by date， transportation number， or area to show the possible close contact with conformed COVID-19 patients.

The first wave of the COVID-19 cluster took place around the time of the Chinese Lunar New Year. Hundreds of millions of people traveled across the country to see their families， it is world's biggest human migration measured by scale[36]. Different from citizens in the United States， the Chinese use public transportation more often， which includes but is not limited to high-speed trains， subways， and interstate buses. The public transportation usually holds people in a small space for a long period of time， and it increases the chance of infection. Wuhan is one of the largest transportation hubs in China， which moves hundred of thousands of travelers every single day. In controlling the spread of COVID-19， several companies worked with the Ministry of Transportation in China to develop a feature in a smartphone application WeChat[37]. This feature， allows the user to search by date， ticket number， or destination to know whether he/she has traveled with COVID-19 positive patients in the same public transport. The system is able to search the people's names within the data and distinguish healthy people and the positive cases of COVID-19. By using such technology， the authority would able to quarantine potential COVID-19 carriers for 14 days， since people with mild or no symptoms could also spread the virus to another[38]. Generally speaking， those applications do not disclose location data to all citizen; only individual who provides specific date， destination， and personal information. It not only supplies a gap of the generality and non-specificity governmental data disclosure， but also protects the right to know for specific travelers， which may also be the potential COVID-19 carriers. Because of this application and data usages， Chinese COVID-19 control and prevention established the dual-track management model： the centralized government and the active assistance of individuals.

However， in some provinces， the local government did decide to disclose individual location information to everyone in the hot area， even including information that is not related to public health. For example， the following information disclosed by the Guangzhou government on its website， which includes career information， was not necessary under the circumstance.

Example： Mrs. Zhang， female， age 30， is a native of China and a resident in Xiamen City， Fujian Province. She has recently been engaged in the financial business in the Philippines. On March 19th， she arrived at Guangzhou Baiyun International Airport from Manila， Philippines， flight number CZ3092 and seat number 33C. On the following day， March 20th， she has been confirmed positive of COVID-19[39].

In the meanwhile， the South Korean government wants to disclose location data to the maximum. South Korea passed an amendment to the Infectious Disease Control and Prevention Act （IDCPA）[40] to combat the spread of COVID 19. According to the current revised Article 76-2 of IDCPA[41]， the Health Ministry of South Korea is authorized to collect personal information of diagnosed and potential patients without consent. Moreover， based on the statement of Article 5 in Act[42] on the Protection， Use， etc. of Location Information[43] and Article 2 in the Telecommunications Business Act[44]， the National Police Agency and the South Korean Public Health Agency request the access of all location data from information providers and telecommunications business operators. The legislative provisions， which also enable the South Korean government to collect， analyze and publish the location data of citizens to the maximum extent， to quickly track the spread of COVID-19， is known as the South Korea Model[45].

In fact， maximum disclosure of location data can arouse widespread public attention， however， the concern is that no need to "use a sledgehammer to crack a nut". Disclosing location data in special areas is beneficial for the nation， healthcare entities， and individuals， but it may not protect the right to privacy effectively. The "individuals report their travel history" model may protect travelers' right to privacy but it may cause the concern that is not enough for the general public to know. How to balance the right to health and the right to privacy should be rethought under the legal principles in administrative law theory.

3 Rethink Location Data Using under COVID-19

3.1 Whether Location Data is Really Useful under Public Health Emergencies？

With the spread of the COVID-19 all around the world， various countries have collected and analyzed the location data of citizens to control the spread of the epidemic. Due to the data disclosure and other reasons， South Korea， Singapore， Hong Kong， and many countries or regions achieved temporary success in controlling the spread of the COVID-19 and also established an Asian Model of Epidemic Control. However， due to the unfavorable control measures， European countries， facing a wide multi-spot infection， learned from the Asian Model and reacted quickly for location data disclosure and other measures of COVID-19 control. Nevertheless， with the increasing attention to COVID-19， all sectors of society started working on the utilization of location data in the prevention and control of COVID-19. Several potential threats have been raised to the individuals' privacy and freedom of the public since the location data collection and disclosure means everyone may potentially be tracked for data analysis and investigation.

First， the location data utilization collected the data from users who carry cellphones. General speaking， in many parts of the world， there are people who do not have a cellphone， that is to say， the location data disclosure application can only apply to individuals who own cellphones， and it must be a smartphone that has features like GPS， or Wi-Fi. For example， Pan-European Privacy Preserving Proximity Tracing is the smartphone application used in Germany[46]. According to a research study by Oxford University， about 60% of people during travel with smartphone devices， the data from those applications have its tracking value[47]. At present， the penetration rate of smartphones is different among countries. 95% of Koreans own smartphones[48]， however， Russia and Greece both are the developed countries but only 59% of citizens own smartphones; in many developing countries in Africa， the rate of own smartphone could be lower than 60%[49]. Hence， if those countries apply Pan-European Privacy Preserving Proximity Tracing， the areas which have less than 60% of its citizens own tracked smartphone， the location data would not likely to work as expected by its governments.

Second， even if people carry their mobile devices daily in the social life， once this measure is implemented， there still a possibility that may negatively affect the outcome. For example， when people willingly travel without mobile devices， the accuracy of location data collection and the scientific nature of epidemic prevention and control will be greatly reduced[50]， and the effectiveness of this method will be reduced accordingly. Hence， it is significant to gain the trust， understanding， and cooperation with the general public while finding legal measures to balance the relationship between location data disclosure and individual privacy under public health emergency.

3.2 How to Disclose Location Data by Balancing the Right to Health and Privacy

The Tool Theory points out that technology is just a tool for use， there is nothing wrong or right about the tool itself. It is the fault of the person if one uses it improperly. The location data is an innovative tool that tracks and discloses， there is no wrongdoing but it heavily depends on how the government uses it. Based on cost-benefit analysis， once a government chooses to use location tracking to control an epidemic and disclose related information and data， the burden shifts to the legal side because the government must consider how to balance the right to health and the right to privacy under location data disclosure.

3.2.1 Public Health Should be the Primary Goal in Public Health Emergency.

In Cicero's book De Legibus， he wrote Salus populi suprema lex esto[51] which means the safety of people is the supreme law in all the world. Health is part of safety， it is valuable and important to the society as a whole. Based on different value judgments， health is usually identified at different logical levels， such as in the Engineering Model[52] or? the Social Model[53]. The Engineering Model pays more attention to the physical medicinal condition， focusing on the repair of human organ defects; while the Social Model transcends the physical limitations of medicine and views health from a broader perspective， thus placing it on social attributes[54]. The WHO defines health based on the Social Model， and treats it as a basic human right that should be protected by the law. The goal of health is a good physical， mental， and social condition， not just a medically disease-free[55].

During a public health emergency， protecting public health should be the primary goal. The UK Information Commissioner's Office （ICO） also issued the "Statement in Response to the Use of Mobile Phone Tracking Data to Help during the Coronavirus Crisis" and emphasized that protecting the overall interests of the public under the epidemic has always been the primary concern of ICOs[56]. As above mentioned， location data disclosure is like a two-sided coin which includes both advantages and disadvantages. At present， it is difficult to overcome all shortcomings since the governments， still at the early stage of location data collection， require additional experience. When the epidemic keeps spreading， public health and interests are the primary goals for both governments and individuals. In "Coronavirus： commission adopts recommendation to support exit strategies through mobile data and apps，"[57] the EU Commission states that GDPR should not become the obstacles of controlling and preventing COVID-19， however， personal privacy is expected to be legally and properly protected.

Due to the effective disclosure of location data of infected patients to track close contact individuals， many Asia countries have quickly managed to control the spread of Coivd-19[58]. Although there are many legal concerns regarding location data collection and disclosure， location data disclosure is more effective to promote public health under public health emergency， such as providing information regarding potential carriers and the total patients in regions. All in all， the governments could disclose location data to control the spread of COVID-19， but must follow the limitations by legal principles.

3.2.2 Consider Location Data Disclosure under Right to Health

According to the Neoclassical Economics Theory， diversified medical services can be divided into public goods， private goods， and mixed goods， which could be supplied by either the market or government[59]. Before the concept of Sozialstaat of Germany， which emphasizes the government's intervention and coordination in social and economic development to overcome the shortcomings caused by the Market Economy， medical health was usually regarded as a private matter which was provided by private medical services. Because of the rapid development of productivity at the end of the 19th century and the beginning of the 20th century， the social relations and economic structures became complex. At this time "the concept of public service is gradually replacing the concept of sovereignty as the basis of public law"[60]， therefore， countries gradually regard "health" as the state's obligation to citizens[61].

Different from the Political Theory of Possessive Individualism of C. B. Macpherson[62]， right to health not only means the right for one's own health but also means the individual has obligation to each other around him/her; for example， infected individuals[63] should inform those people had close contact with them[64]. To this extent， informing one who has been in closed contact with infected individuals is the right to health of close contacts and also the duty to disclosure of infected patients. The public has the right to know general information regarding COVID-19， and close contacts also have the right to be informed of specific information by infected individuals who may be in the same place with them.

It is important to clarify that the disclosure levels of location data disclosure should be and must be different. For the public， a zip code map regarding the positive cases or data provided by the U.S. governments is enough; for people who may go to a public place， they should have the rights to be informed whether they are exposed in the same space with infected people. Like Singapore， users can type when， where they had gone to find out whether there was any positive case in that place. But it is not necessarily disclosure of the infected person's location information to all the public.

In short， under the right to health theory， it is important to identify the scope of location data disclosure， which must be also limited to use only by the government under a public health emergency. For the general count of patients， the geographic location data disclosure model， which disclose location data by zip codes， is enough; as for closed-contact person， they have the right to know whether they are at risks of positive cases.

3.2.3 Due Process and Proportional Principle

In the public health emergency， governments could use location data disclosure and limit the scope of disclosure based on different needs. Those two are necessary to balance the right to health and the right to privacy， but this is not enough. The enforcement and its method of disclose location data are important as well.

First， the legal requirements for the use of location data need to be clarified. Whether the government can cooperate with other institutions to use location data needs to be based on public health and incorporated in different level of public health emergency. Moreover， the legal procedures required to collect and use the data， and the scope of the use of location data are important. For example， collecting and analyzing 10-year travel history is clearly disproportionate compared to the two-week quarantine incubation period of COVID-19; collecting information on the type of work rather than the location of work has no value for epidemic surveillance.

Second， the data deletion period and the right to be forgotten after COVID-19 need to be clarified. After the epidemic crisis is contained， the government and its cooperating agencies should stop the use of the personal data including the location data， which it collected in the public health emergency; and in the meanwhile， the government should properly handle and delete the individual location data stored in the above projects to prevent privacy and other public safety threats.

Third， the country should grant individuals the right to sue by law， if anyone believes there is any illegal action during the collection and use of their location data. For example， based on the conclusion of automated location data analysis that someone was in quarantine or isolation， the affected individuals should be guaranteed the legal and fair right to seek relief and obtain official explanations on the proper reason for such quarantine or isolation. If the decision was wrong， the right for just compensation should be reserved.

4 Conclusion

In sum， location data disclosure has three-level significant values for control and prevent COVID-19. Various countries create three different models to disclosure location information. However， it still a tough legal issue when balancing location data disclosure， individual right to health and privacy protection. To address this issue， there are three points which should be considered as follows. Firstly， the government should treat public health as the highest value under public health emergencies. Secondly， the government should consider location data disclosure both under the rights to know for the public and rights to health for the individual. In short， government should identify different scope of location data disclosure in different needs under the public emergency. Thirdly， if the government discloses location data based on a constitutional right， the government should also follow the proportional principle， use the due process， and have the just compensation.

References：

[1] COVID-19 as designated by World Health Organization， stands for Corona Virus Disease 2019.

[2] World Health Organization，Coronavirus （COVID-2019） Dashboard[EB/OL]. [2021-3-8]. https：//covid19.who.int/

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[7] Gayin Yamey. What the U.S. Needs to Do Today to Follow South Korea's Model for Fighting Coronavirus[EB/OL]. [2020-12-8]. https：//time.com/5804899/u-s-coronavirus-needs-follow-s-korea/

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[9] Big data is an emerging technological way to analyze， extract data to deal with complex issues which has greater statistical power. See Breur， Tom "Statistical Power Analysis and the contemporary 'crisis' in social sciences". Journal of Marketing Analytics[J]. 2016（4）：61–65.

[10] One of the core function of the public health system is to gather health information and deploy those data for the welfare of the community. see Denis J. Protti， "The Application of Information Science， Information Technology， and Information Management to Public Health"[C].? Roger Detels， James McEwen， Robert Bealehole， et al.， Oxford Textbook of Public Health， 4th ed. Oxford： Oxford University Press， 2002： 419.

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[13] Summary of the HIPAA Security Rule[EB/OL]. [2020-12-8]. https：//www.hhs.gov/hipaa/for-professionals/security/laws-regulations/index.html.

[14] See Health Insurance Portability and Accountability Act （HIPAA） Privacy Rule.

[15] General， it is a governmental power under Constitutional Law. In the United States， according to the U.S. Constitutional Law and 10th Amendment， both federal government and states government have been granted the power for protect public health. In China， according Article 45 of Constitution of P.R.C.， the Central and Local governments have been granted power to protect public health.

[16] See Brian D. Wassom： Augmented Reality Law， Privacy， and Ethics： Law， Society， and Emerging AR Technologies[M]. U.S.： Syngress Media， 2015：43-69.

[17]Roger D.; HillMelinda J. Braun： Geolocation by Light Level： the Next Step： Latitude[J]. Electronic Tagging and Tracking in Marine Fisheries， 2001：315-330.

[18] Kyle Wiggers. Pew： Smartphone Penetration Ranges from 24% in India to 95% in South Korea [EB/OL]. [2020-12-8]. https：//venturebeat.com/2019/02/05/pew-south-korea-has-the-worlds-highest-smartphone-ownership-rate/

[19] The Global Positioning System （GPS） or a Satellite Navigation is a system that uses satellites to provide autonomous geo-spatial positioning. See GPS： Global Positioning System Wide Area Augmentation System （WAAS） Performance Standard， Section B.3[EB/OL]. [2020-12-8]. https：//web.archive.org/web/20170427033332/http：//www.gps.gov/technical/ps/2008-WAAS-performance-standard.pdf.

[20] Section 2 ： "any data processed in an electronic communications network or by an electronic communications service indicating the geographical position of the terminal equipment of a user of a public electronic communications service， including data relating to—

（f） the latitude， longitude or altitude of the terminal equipment;

（g） the direction of travel of the user;

（h） the time the location information was recorded".

[21] 4. （1）： "personal data" means any information relating to an identified or identifiable natural person （'data subject'）; an identifiable natural person is one who can be identified， directly or indirectly， in particular by reference to an identifier such as a name， an identification number， location data， an online identifier or to one or more factors specific to the physical， physiological， genetic， mental， economic， cultural or social identity of that natural person.

[22] In re United States ex rel. An Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel.， 849 F. Supp. 2d 526 （D. Md. 2011）.

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突發(fā)公共衛(wèi)生事件中位置數(shù)據(jù)的披露：基于健康權(quán)和隱私權(quán)的視角

邢? 昕

（鄭州大學(xué) 法學(xué)院，鄭州450001;[美]亞利桑那州立大學(xué) 桑德拉·戴·奧康納法學(xué)院，菲尼克斯85004）

摘? ? 要：位置數(shù)據(jù)披露在防控新冠病毒（COVID-19）等傳染病期間在國(guó)家、公共衛(wèi)生機(jī)構(gòu)及個(gè)人層面具有三重價(jià)值、成效顯赫;但也暴露出健康權(quán)與隱私權(quán)之間的內(nèi)在張力。全球范圍內(nèi)存在三種位置數(shù)據(jù)披露模式：一是模糊地理數(shù)據(jù)披露模式，即向所有公眾公開(kāi)僅涉及概括性、脫敏性的位置數(shù)據(jù)信息;二是對(duì)特定人群信息披露模式，針對(duì)可能的密切接觸者等特定群體統(tǒng)一披露已被感染者位置數(shù)據(jù);三是查詢披露模式，即有需求的個(gè)體將自身位置信息輸入后查詢是否存在密切接觸等可能性。各國(guó)政府試圖用不同模式探索平衡健康權(quán)與隱私權(quán)之間的最佳之選，但仍存實(shí)踐難題。在突發(fā)公共衛(wèi)生事件中平衡健康權(quán)與隱私權(quán)需要從以下三個(gè)維度著重考量：第一，堅(jiān)持維護(hù)公眾健康的首要目標(biāo);第二，建立位置數(shù)據(jù)披露的分層分類思維，根據(jù)不同的需要在不同范圍內(nèi)進(jìn)行披露;第三，明確位置數(shù)據(jù)的事后刪除期限以及可能的損害救濟(jì)路徑。

關(guān)鍵詞：位置數(shù)據(jù);突發(fā)公共衛(wèi)生事件;健康權(quán);隱私權(quán)