When we are talking about the Constitution’s response to the protection over people’s privacy in the Internet era, we put emphasis on the gap between what the Forefathers fathomed and the threat this era imposes on us. But how should the law and constitution in this age be shaped in a country, like China, where its constitution has little teeth, where there is little tradition of the rule of law, and little protection over privacy?

Certainly, one cannot expect any guidance from the constitution in the field of protection of privacy. First, the Chinese constitution does not recognize privacy as a fundamental right of people. Nor does any other laws or regulations expressly protect people’s privacy from the intrusion of public power. On the contrary, the government does have a power to review individual’s online data, when it deems necessary. Second, nor does the constitution prohibit seizure of private property, if privacy can be categorized at all as a form of private property. The constitution has made it clear: the government does enjoy the right of seizure, provided that it is exercised to “further national interest”. And third, the Chinese constitution doesn't provide a ground of suit, meaning that one can not launch any legal suit claiming that his or her “constitutional right” has been violated by a government entity or any third party, even if his privacy right is allegedly protected thereunder.

While the constitutional protection of privacy is a pessimistic picture, can we count on the courts to make precedents on this brand new issue? My sense is that the court will just simply follow the government’s push, rather than exercise judicial review over its behaviors. Since usurping and using individual’s personal data give the government the “key” to every person’s life, making every piece of their secrets nowhere to hide. And given the fact that Chinese courts don't have the independence from the administrative department as their U.S. counterparts do, odds is slim that any court should be brave enough to challenge any government department’s seizure of any private information. This is particularly true, given the current trend in the Chinese government of exercising overall control of every aspects of the society.

The absence of a systematic legal protection of digital privacy, Chinese internet society is indeed in a state of anarchy, not only the government, but also the providers of internet information contents, can take advantage of the users’ information that comes at their hand so easily. The reason might lie in efficiency. It is more convenient to leave the underlying legal issues untouched rather than reveal them, discuss them, and even attempt to solve them at the risk of costing the government and the large enterprises access to such information. We may even say, it is not in line with the interest of the Chinese Communist Party for the law to grant protection over privacy rights. It is partially under such flourished efficiency that Chinese Internet industry is now developing at an unprecedented speed, yielding tremendous wealth, and, at the same time, furnishing unlimited personal information to the Party.

But, is it a goal that we should pursue? Are we destined to march down a path where privacy protection will be unhandled? We are so marching probably because we don’t have any developed alternatives to march differently. At least, we can surmise some possibility that could have been open to the Chinese Internet, if there the Party was not ruling.

First, the major change would be that, privacy right could find more readily its root in the nation’s democracy institute and the constitution. China might have been in better terms with western countries, and therefore its legal regime as a whole may adopt more seriously the western notion of “rule of law,” rather than shape its laws under the penumbra of the former Soviet Union. This may serve to restrain the government’s power, and make it at least more prudent in exercising its power, whether in reality or on the Internet.

Second, the Internet users in China will learn more about the voices made by the rest of the world. At the time being, many websites based overseas are blocked by the great “fire wall” of China. Out of some reason, the Party deems Chinese people are not entitled to the right to browse such websites as, e.g., search engines like Google, social medias like Facebook and Instagram, and periodicals like the Economist. However, the freedom to information is a close cousin of freedom to speak, in the sense that they both contribute to civil autonomy. This draconian prohibitive approach adopted by the Party is rarely seen in the modern world.

And third, the Internet could have further become a test field of democracy in China, with less censorship and speech gag imposed by the government. Dissenting remarks online would less likely to be wiped off by the government or by Internet content providers under its instruction, for “destabilizing” the society. And dogged dissidents will no longer face imprisonment for all charges imaginable (for example, soliciting prostitution, possession of drugs, etc.), which are only cover of purge.

But back to reality, with the Party’s ruling in China, do we have any leeway? We could imagine allowing “efficiency” or the interest of a small group of people to rule this new space in future; or we could imagine recreating spheres of liberty to replace those created by imperfections in technology. To make such choices meaningful, the government first needs to step out of the way of free speech in the cyber space, as well as in the real world, meaning that it shall let people’s opinions and understandings catch up to the technology. Then, it shall give the court power to reconsider the values enshrined in the constitution in the first place, to review a wide diversity of current opinions, and to put the most cherished value to the force, before the constitution undergoes any material or revolutionary changes.

-- ChenyeNi - 02 May 2017

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