健康醫療數據的刑法類型化保護模式研究

Research on Criminal Law Typologization Protection Mode of Health and Medical Data

現行刑法對健康醫療數據的控制型保護模式，既難以杜絕二次洩密行為，又會造成保護體系的漏洞，且不利於健康醫療數據的開發應用。經對比分析其共享屬性可知，健康醫療數據分為不予共享類與開放共享類兩個類型。在安全保護需求上，前者更關注刑法對數據保密性的保護，後者更專注於刑法對數據完整性與可用性的保護。刑法應當據此採取類型化保護模式，強化對不予共享類健康醫療數據的控制型保護，推動對開放共享類健康醫療數據的利用型保護。應將非法使用涉個人隱私的不予共享類健康醫療數據行為，及破壞開放共享類健康醫療數據行為納入刑法規制範圍，並將合理性原則作為開放共享類健康醫療數據處理行為的違法阻卻事由。

The criminal protection of health and medical data is an important component of achieving the Healthy China strategy. However, in the protection of health and medical data, the current criminal law adopts a control based protection model that ensures the effective control of data subjects over data, which lacks appropriateness. The control based protection of health and medical data by criminal law is not only difficult to prevent secondary leakage of health and medical data, but also creates loopholes in the protection of health and medical data, which is not conducive to the development and application of health and medical data. The reason why the control based protection of health and medical data in criminal law has encountered the above-mentioned problems is that it ignores the differentiation of types of health and medical data and does not pay attention to the differences in security attributes of different types of health and medical data. After comparing and analyzing the sharing attributes of health and medical data, it can be found that health and medical data can be divided into two types: unshared health and medical data and open sharing health and medical data. Unshared health and medical data refers to health and medical data that is not suitable for sharing with other units, organizations, or individuals; this includes health and medical data related to personal privacy, trade secrets, and state secrets among the six types of data listed in China's Information Security Technology Health and Medical Data Security Guidelines. Open sharing health and medical data refers to health and medical data that is unconditionally or conditionally open sharing with other units, organizations, and individuals; this includes six types of data listed in China's Information Security Technology Health and Medical Data Security Guidelines, which do not involve personal privacy, trade secrets, or state secrets, as well as data obtained from desensitization and declassification of health and medical data involving personal privacy, trade secrets, and state secrets. Moreover, the focus, intensity, and mode of criminal law protection required for unshared and open sharing health and medical data are not the same. Although confidentiality, integrity, and availability are usually considered as the three security attributes of health and medical data security, the confidentiality, integrity, and availability of health and medical data do not need to be protected as a whole. They are relatively separate relationships under the premise of overall unity. In fact, in terms of security protection requirements, unshared health and medical data focuses more on the protection of data confidentiality by criminal law, while open sharing health and medical data focuses more on the protection of data integrity and availability by criminal law. Criminal law should categorize the protection of health and medical data based on the differences in security protection needs. On the one hand, the criminal law should strengthen the control based protection of unshared health and medical data, which requires incorporating the illegal use of unshared health and medical data that involves personal privacy into the scope of criminal law regulation. On the other hand, the protection of open sharing health and medical data in criminal law should shift from control based protection to utilization based protection that focuses on protecting the legitimate use of data by data subjects. The utilization oriented shift of the criminal law protection for open sharing health and medical data requires not only incorporating the act of destroying open sharing health and medical data into the scope of criminal law regulation, but also using the rationality principle as a reason to hinder the illegality to the processing of open sharing health and medical data.