网络服务提供者“双重义务”的内在冲突及协调路径

The Inherent Conflict and Coordinated Path of“Dual Obligations”of ISPs

网络服务提供者的多重身份及利益追求差异诱发了个人信息保护义务和侦查协助义务间的紧张关系,履行某一义务会抑制对另一种义务的法益追求。立足于刑事侦查领域,双重义务间的逻辑表征为:侦查协助义务对个人信息保护义务的压制,以及个人信息保护义务对侦查协助义务的锁定。为缓和双重义务的冲突及填补处理规则的空白,《中华人民共和国个人信息保护法》确立了侦查协助义务的优位性,但优位性条款因守成取向、刚性特征以及控制限度僵化而造成适用障碍,冲突缓和作用不显。义务冲突集中表现为:协助调取概括性与信息处理目的限制性相矛盾,协助调取强制性与内部合规审查要求相排斥,协助调取最大化需求与信息处理最小必要范围相背离。冲突协调需采取程序规制和实体调控指导的双重路径,明确网络服务提供者分类审查的方式及内容,建构侦查协助义务的豁免机制,以实现双重义务间的相对平衡。

With the digital transformation of personal information processing,the construction of personal information protection path suitable for the digital age has become a global consensus and core issues.However,although the tort and protection path in the field of private law has become the core proposition in the field of personal information protection,in the field of criminal proceedings with higher tort risk,the realistic demand of personal information protection has not been given due attention.Especially under the background of Internet service provider’s superior position of investigation assistance obligation and aggravating the inherent tension between“double obligation”,how to ease the conflict and make personal information rights effectively conform to the procedural characteristics of criminal procedure is the difficulty and hot spot of personal information protection research at present.Starting with the logical relationship between the existing theory and the“double obligation”,this paper reinterprets and clarifies the existing viewpoints.On the one hand,taking the“compulsory theory”and“arbitrary theory”of investigation,the“compatibility”between the obligation of investigation assistance and the obligation of personal information protection,and the theory of“necessary cost”as the argumentation framework,this paper puts forward that the above theories have insufficient understanding of the“substantive conflict of double obligations”.On the other hand,this paper argues that the multiple identity positioning and interest pursuit differences of ISPs induce the tension between personal information protection obligations and investigation assistance obligations,and the performance of one obligation will inhibit the pursuit of legal interests to another obligation,thus creating the“suppression”and“locking”effect of the dual obligations of ISPs in the process of public-private cooperation.Different from the previous literature research,this paper mainly makes the following four aspects of expansion:first,from the perspective of historical“lessons”,judicial cases and obligation constraints,this paper focuses on the analysis of the practical reasons for the establishment of the obligation of investigation assistance,and draws the viewpoint that the operation of the priority position is“formalized”and does not contribute to conflict mitigation.Second,this paper focuses on the system and its practice,from the perspective of the conservatism,rigidity and rigid control limit of the obligation of investigation assistance,and puts forward the specific obstacles to the application of the system,as well as the problem that the conflict mitigation effect is not obvious.Third,it comprehensively summarizes and analyzes the typical conflict between the investigation assistance obligation and the personal information protection obligation,such as the contradiction between the generality of assistance and the restriction of information processing purpose,the exclusion of mandatory and internal compliance review requirements,and the deviation between the maximum demand and the minimum necessary scope of information processing,and so on.Fourth,based on the above conflict problems,this paper puts forward the dual path to alleviate the“double obligation conflict”.At the entity level,the relationship between“double obligations”should be regulated by the principle of proportionality.In terms of procedural regulation,in order to ensure the orderly and effective transfer of investigation assistance obligations,we should establish a classified review mechanism with investigation transfer compliance as the core,and in order to protect personal information protection obligations,we should construct a reasonable exemption mechanism for the investigation assistance obligations of ISPs.This paper provides a more reasonable way to alleviate the internal conflict of“double obligation”of ISPs,which not only provides the power boundary for the investigation needs of investigation organs in criminal proceedings,but also creates a reasonable operation space for the personal information protection obligations and rights exercise of ISPs,which has great practical guiding significance.