American Procedural Law Protection To The Right To Privacy

This article is focusing on the study of the approaches and realistic meaning regarding the power control oriented US procedural law protection to the right to privacy.The operation of criminal procedural power is the central issue of the stressful relationship between the individual citizen and the state. In the society in peril, the strong requirement about privacy and autonomy from the citizens, together with the tremendous risk caused by criminal procedural power against privacy become the undeniably objective existence. It is special in the US procedural law that to give sufficient attention to the particular function which the right to privacy plays in the process of establishing the balanced relationship between the individual citizen and the state. In the area of criminal law which national power is extremely concentrated and reinforced, as a power-control tool, the right to privacy has been repeatedly verified and has been pushed up to the citizen right on the level of constitution,(for instance, right against unreasonable search and seizure, the privilege against Self-Incrimination). The right to privacy is centered by the criminal procedural power control, and it is protected in the private field from the unreasonable intrusion by power through due procedure. The right to privacy strives for the utmost realization of personal freedom and value in the process of balancing itself and the national power, and practically solves all kinds of confusions in the judicial practice.The Americans have developed a unique understanding of the value and function of the right to privacy, and has made remarkable contribution to dealing with relations between the right to privacy and the criminal procedural power. The right to privacy is the core right on the basis of which logical analysis of cases of the two basic rights of criminal procedures are built (e.g. basic right in the Fourth Amendment, the "reasonable expectation of privacy", and the basic right in the Fifth Amendment, the "Hermit Theory"). The special importance the Americans attach to privacy is shown in specific designs of legislation, judiciary and policies. It is an institutional practice of liberalism, the rule of law, and the freedom to resist intrusion of government into people’s private affairs. It reveals the American people’s understanding of life and yearning for freedom. The major concept that America upholds in dealing with the relations between privacy and Criminal Procedure Law mainly includes:giving fundamental recognition to the right to privacy granted by the constitution; from the perspective of restricting misuse of state power, identifying the specific range of privacy rights concerned in the criminal procedure and forming the scope of the right to privacy in criminal procedure through the cases that led to the Fourth and the Fifth Amendment. Meanwhile, not denying the important role that public policy plays in protecting the right to privacy, emphasizing the balance of interests among privacy and state power and public power through administrative legislation and regulation, so as to make up the deficiency of privacy protection by constitution and common laws.The core meaning of studying the protection of privacy by criminal procedures lies in the restriction effects that the right to privacy casts on public power and, especially, the criminal justice. In the society in peril, state power becomes the largest threat to privacy. The state permeates almost every aspect of private life in various visible and invisible ways, casting control on elements of citizen identity. While these elements that constitute a citizen’s individual identity are the essences of privacy. Privacy has become the foundation of a citizen’s subjectivity and independence, and therefore gained independent political value and become the core element of political democracy. Based on the objectivity of political and moral value of privacy, and uncertainty of the scope of privacy, this thesis redefines privacy from the perspective of "identity-building". It regards privacy as a core element that constitutes individual identity, and that privacy is the freedom to eliminate unreasonable restriction of individual identity. Criminal procedure protects the right to privacy by preventing and eliminating the intrusion from state power. It mainly concerns about the intrusion of solitude, public disclosure of private facts, and false light and appropriation. Privacy of personal life and the transparency of the excising of power are two complementary legal instruments of power control. The right against unreasonable search and seizure, the right against self-incrimination, and exclusionary rule of illegal evidence are the specific reflections of the system. The protection from unreasonable search and seizure and the right against self-incrimination are based on the idea of property protection. With Charles Katz v. United States as a milestone, the United States has developed logical analysis methods focused on protection of privacy, and gradually specified the basic conditions of protection of privacy in criminal procedures, which include:the right to privacy is not an all-or-nothing right, and the reasonable expectation of privacy varies according to the changes of external conditions; the right to privacy has no necessary connection with personal rights, personal space rights and property rights, but takes them as carriers; the reasonable expectation to privacy has to gain subjective and objective recognitions, and personal emotion is not a necessary and sufficient condition of expectation of privacy; the state security is often taken as an exemption due to the non-absolute nature of the right to privacy. The standard of "reasonable expectation of privacy" serves as an important clue for the development of the privacy protection concept embodied in "the right to against unreasonable searches and seizures" in the Fourth Amendment to the United States Constitution. This standard was set up in Katz v. United States, a United States Supreme Court case in1967. Thereafter, based on the Theory of Risk Bearing, the standard of "reasonable expectation of privacy" was further refined in a series of legal precedents concerning the limited use of electronic monitoring equipments, and privacy protection of communications. In the Fourth Amendment to the United States Constitution, the scope of right of privacy is extended to persons, houses, papers, effects, some public or open areas, telephone and bank records, etc. The "right against self-incrimination" in the Fifth Amendment to the United States Constitution is closed related to the privacy protection clause in the Fourth Amendment to the United States Constitution. Through the legal interpretation of Fox Hunter’s Theory, An Old Woman’s Reason and Hermit Rationale, the spirit of privacy protection has been fully granted by the Fifth Amendment. Theoretically speaking, the "right against self-incrimination" provides a principled protection for the individual privacy. However, its scope of protection is influenced by policy and it constantly proves the non-absolutistic of private interests through silent evidence and witnesses immunity systems. The function of the Fourth Amendment and the Fifth Amendment is to protect individual privacy interests through regulating government’s way of obtaining criminal evidence. For police’s behavior of obtaining evidence through illegal means, the "criminal illegal exclusionary rules" would be used as the remedy approach, safeguarding the political ideal of privacy. The illegally obtained evidence includes illegal search or seizure, and evidence and confessions made subsequent to an illegal arrest. Accordingly, a defendant cannot be found guilty if evidence is achieved through illegal search and seizure, and involuntary confession made by a criminal defendant is the invalid evidence."Exclusionary rule of illegal evidence" acts as the most effective remedy approach when the citizen’s individual privacy right is infringed by state criminal judicial power. These "exclusionary rule of illegal evidence ", combined with "the right against unreasonable searches and seizures" and the "right against self-incrimination", constituting a complete system achieving privacy interest and control of state power in Criminal Procedural Law.Privacy is not only a legal issue, but also the focus of the public policies. In the name of safety, the "legal" violation of individual privacy by the country is constantly intensified because of the anti-terrorism. Privacy, freedom and safety launch repeated trial of strength. Under the circumstance of legal socialization and administrative state, with policy tools, police makers and legislators establish a proper, necessary and balanced link between the aims and approaches of public power and state power. As two complementary tools of privacy preservation and power controlling, laws and policies constitute the basic systems for privacy protection in the system of Criminal Procedure Law. Public policies can be used to make up the deficiency of legislation and influence the direction of the criminal justice practice. Constitution and laws directly protect concrete privacy interests in a common level. With the rising of social risks, especially the further battle of anti-terrorism, status and rules of privacy in Criminal Procedural Law indicate new trends that yardstick of compulsory measures like new searching, communication monitoring and compulsory sampling, should draw close to the security target; the saving and opening standard of backup information such as criminal record and DNA data group should be consistent with the target of criminal control; privacy of the witness and victims is getting increasing attention.According to the above study, it can draw the following conclusion about the American privacy right’s criminal procedural law based on the case law. Suspects, defendants, witnesses and other relevant personnel of the criminal proceedings have the right to privacy, which can be considered as the ground for defense to fight against the state power. The exercise of the criminal procedural power must abide by the rules of case law. It reflects the cautious attitudes towards the legitimate privacy violations by state power. Searching, seizure, other mandatory sanctions and technical investigation measures should strictly follow the principles of the writ, implementing the third-party review of external supervision mechanisms. The legitimate privacy violations by state power should follow the principle of proportion. The damage for citizens’ right to privacy should be reduced to the minimum. Give full relief to the illegal invasion of privacy and prevent the abuse of state power.Comparatively speaking, privacy has never been part of the basic rights of criminal proceedings and the criminal proceedings system has never been designed on the basis of privacy protection in our country. There is considerable room for improvement in the following aspects:searching, seizure, interrogation and inquiries, compulsory sampling, surveillance, protection of witnesses’ privacy, protection of victims’ privacy, preservation of information and other privacy-related criminal proceedings. Based on the experience from the abroad, the study has tentatively proposed that the privacy protection and power control mechanisms in the criminal procedure law can be improved from the following aspects:Firstly, follow the principle of "legal reservation" strictly; hold the position of power control; improve the legislation on privacy infringement acts such as search, seizure and wiretapping.Secondly, build the principle of judicial writ and restrict power of investigation.Thirdly, abide by the principle of proportion and reduce the damage for citizens’ privacy rights to the minimum.Fourthly, establish the rights protection and relief mechanisms. Define sanction measures clearly for misuse of the authorities, which includes improving the state compensation system, imposing procedural sanctions on misuse of the authority by building illegal evidence exclusion rules and establishing individual accountability system to prevent misuse of the authority.Fifthly, establish the protection and compensation system for witness and define the exemption rules explicitly for witnesses who refuse to testify. Privacy plays an important role in constructing the individual subjectivity and independence and has profound political value for constitutional democracy. It is of distinct political significance for respecting and protecting the civil personality and supervising and controlling state power in public law, especially in the field of criminal procedural law. Looking back on the history of political civilization, it is the immense progress in concept and system and is worthwhile exploring.