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Cyber Space in China: What the Government can Do

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 constitutional 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 have access to people’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 provides that 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? This new cyber space seems to call for a very active judicial response to protect individual rights against increasing governmental and private encroachment. Perhaps, courts might raise some solutions to fill in the gap created by cyber technology and the law. It could either derive from the legal principles, or borrow from other countries, solutions to these heated debate. But this approach may not be feasible, too. My sense is that the court will just simply follow the government’s push, rather than exercise judicial review over its behaviors, as it did in the real world sphere. Since usurping and using individual’s personal data give the government the “key” to every person’s life, making every piece of their secrets no where 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. It is partly under such flourished efficiency that Chinese Internet industry is now developing at an unprecedented pace, and yielded tremendous wealth. But, is such 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 for directing our march differently.

Not only can law and constitution say very little to us, there is no well-developed democratic structures, either. The cyber space could have been a new sphere to harbor free speech. It could have been a mechanism through which the people could figure out what types of value we treasure the most when confronted with the ever-changing technologies. It could have been a test field of democracy, from which the most central value stemmed could be codified in law and in constitution in future. Yet we have every reason to question this new space’s efficacy, given its propensity to be censored, and even gaged by the authority in the first place: any speech that is not helpful to keep the society “stabled” will be taken off immediately from social communities and other websites by the content provider pursuant to government regulations. Not to mention, dogged dissidents usually face imprisonment for all charges imaginable. We are not in a time when we know much about what this time should be. There’s nothing here to codify, and there’s no clear vision of what we would want to transform.

We could imagine allowing efficiency 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 more leeway 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. Democracy could be costly or troublesome, but will be a cure to the imperfections in this new space.

-- ChenyeNi - 28 Apr 2017

Revision 1r1 - 28 Apr 2017 - 18:06:32 - ChenyeNi
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