摘要
通信记录数据调取是打击犯罪、治理社会的重要制度。现行的通信隐私分析框架构建于简单、静态、二元的通信数据结构之上,但其理论假设,即第三人规则,在现代日益复杂的信息技术环境中愈发难以成立。基于内容与非内容数据的法律保护的传统区分,与现代通信技术运作中用户数据和流量数据生成、交换和存储的方式日益不兼容,与现代通信中个人隐私和个人信息保护的正当期待愈发背离,是对通信数据形式和类型的不合理区别对待。未来需要一个统一的标准化法律框架,匹配阶层化的调取措施以落实实质法治。复杂动态多元的通信数据分类分级结构为隐私分析提供了一个实用的替代方案,即权利干预程度的多阶层对应权利干预必要性的多阶层。该方案足够灵活,可以适应迅速发展的通信技术。
The acquisition of communication record data is an important system for fighting crimes and governing society.Relevant legal regulatory frameworks have been continuously introduced and updated in various jurisdictions.At the current stage,the system of acquisition communication record data should develop from the formal rule of law to the substantive rule of law.The current framework of communication privacy analysis is built on the simple,static and binary communication data structure,but its theoretical assumption of the third-party rule-the user data in the non-content data is actively provided by the user and the traffic data is retained in the third party after the termination of the communication process and is in a semipublic state while the content data,on the other hand,touches directly on the secret content of communications,but is often stored on the user’s own terminal-is increasingly difficult to establish in the increasingly complex modern information technology environment.The traditional distinction between legal protections based on content data and those based on non-content data is increasingly incompatible with the generation,exchange and storage of user data and traffic data in the operation of modern communication technology,and increasingly deviates from the legitimate expectation of personal privacy and personal information protection in modern communication,constituting an unreasonable distinction between the forms and types of communication data.In the future,a unified and standardized legal framework needs to be established to match the hierarchical data-acquisition measures for the implementation of the substantive rule of law.The complex dynamic and multivariate classification and hierarchical structure of communication data provide a practical alternative to the traditional privacy analysis,that is,the multi-hierarchy of the degree of rights intervention corresponds to the multi-hierarchy of the necessity of rights intervention.The scheme is flexible enough to adapt to rapidly evolving communication technologies.The classification of communication data can be summarized as a transparent and consistent three-level framework based on the specific classification of communication data.At the first level is general communication data;at the second level is important communication data;and at the third level is core communication data.Principled pragmatism takes into full consideration the gravity of possible harm,the possibility of harm and the urgency of harm.At the first layer are general harm and threat;at the second layer are serious harm and threat that should be punished by criminal law;and at the third level are extreme social harm and threat.Through the three levels of the degree of rights intervention corresponding to the three levels of the necessity of rights intervention,we can draw many meaningful conclusions.The acquisition of communications data must reflect the legitimate expectations of modern citizens of the right to privacy and the protection of personal information,help rebuild trust between the government and the people,and create a more connected future for human society.
出处
《环球法律评论》
CSSCI
北大核心
2023年第4期39-55,共17页
Global Law Review
基金
2021年度国家社会科学基金重大项目“数字经济的刑事安全风险防范体系建构研究”(21&ZD209)的研究成果
