大数据时代隐私权的宪法保护进路--以数字化疫情防控为切入点

The Approach to the Constitutional Protection of the Right to Privacy in the Age of Big Data:Taking Digital Epidemic Prevention and Control as a Cut-in

数字化疫情防控中,隐私权保护面临着公、私双重权力生态和下位规范保护不足的挑战。作为基本权利的隐私权具有主观权利和客观法的双重性质,应区分公、私法领域中的不同主体而界定其效力。以疫情防控为契机,全国人大常委会应将《宪法》第38条解释为原则性概括条款,为隐私权提供根本法上的规范保障;同时,应以司法个案为载体,围绕最高人民法院的合宪性审查提请权构建具体合宪性审查制度;最后,在数字化防控的特殊时期,公权机关对隐私权的限制应于法有据,应符合比例原则与法律保留原则,而公民应将宪法作为生活的一种方式,形成尊重人的尊严和个人隐私的共识。

In the digital prevention and control of epidemic,the protection of the right to privacy is faced with the challenge of the ecology of public and private power and the lack of lower law normsprotection.As a fundamental right,the right to privacy has the dual character of subjective right and objective law,and its effect should be defined by distinguishing different subjects in the field of public and private law.Taking the prevention and control of the epidemic as an opportunity,the standing Committee of the National People s Congress should interpret Article 38 of the Constitution as a general provision in principle to provide protection of the fundamental law for the right to privacy.At the same time,judicial cases are to be treated as a carrier,around which concrete constitutional review system should be constructed as well as constitutional review power of the Supreme people s Court.Finally,in the special period of digital prevention and control,the restriction of the right of privacy by the public authority should have a legal basis and conform to the principle of proportionality and the principle of legal reservation,and citizens should regard the Constitution as a way of life,in order to form a consensus on respect for human dignity and personal privacy.