Research On The Protection Of Privacy In Technical Investigation

With the development of society and the progress of nomocracy, people come torealize that protect the privacy is of great significance to achieve personal freedom,maintain human dignity and promote social development. The voice of protect theprivacy in criminal proceedings have become stronger. Compared to otherinvestigation means, technical investigation is more aggressive to the privacy ofpeople. It is one of the state power that have propound impact on people’ privacyunder normal social conditions."Code of Criminal Procedure" regulates technicalinvestigation for the first time, and stipulate its applicable scope of the case, thedecision and implementation body, the implementation period, the obligation ofconfidentiality, custody and use of related materials and the ability of evidence. Thatprovides a legal basis for the protection of privacy counterpart at the level of the basiclaw. However, the relevant provisions are not perfect, it needs further theoreticalresearch, so this article choose the protection of the privacy in technical investigationas a research object, the text is divided into four portions to elaborate on this topic.The first part is the protection of the privacy in technical investigationoverview.In this section first define that technical investigation is the public securityorgans, prosecutors use science and technology equipments to monitor people, placesand things simultaneously and secretly according to state regulations, includingcommunication monitoring, the whereabouts of monitoring, recording surveillance,place monitoring and other specialized techniques. Then from necessity, feasibilityand international trends demonstrate the privacy is a basic constitutional rights. Thenanalysis the relationship between technical investigation and privacy, and put forwardthe argument that both should be adjusted in order to maintain an appropriate balancebetween them. Finally, through the introduction and analysis of foreign theories,pointing out that we should be integrated to take reasonable expectation of privacystandards and methods to weigh the value to define the scope of the privacy thatshould be protected in technical investigation.The second part is the comparative law about the protection of privacy intechnical investigation. This part introduce the relevant practices of the privacyprotection in technical investigation of the United States, Britain, Germany and Japan in terms of applicable conditions, deadlines, approval procedures, monitoringprocedures and remedies, on the basis summarize the commonality of approach toprotect the privacy in technical investigation of major nations that ruled by law inorder to provide useful lessons for China.The third part is the current situation and problems of the privacy protection intechnical investigation in China. This section briefly describes the current situation ofthe privacy protection in technical investigation, then pointing out the problemsexisting legal provisions, including: the provisions about the scope of the applicablecases is vague, the applicable conditions are too loose, internal administrativeprocessing methods can not prevent the abuse of power, the provisions about the useof the material are not clear, supervise measures lack of operability.The fourth part is the recommendations to improve the level of the privacyprotection in technical investigation in China. Since the start and implementation oftechnical investigation will restrict the privacy as the constitutional fundamental right,so it is a kind of coercive investigation. In practical operation and improving relevantsystems should follow the principle of compulsory investigation, including: theprinciple of statutory procedures, the principle of proportionality, the principle ofjudicial review. This section elaborate the basic principles of the technicalinvestigation to be followed first, then propose the scheme to improve the level of theprivacy protection in technical investigation of our country from the technicalinvestigation measures applicable scope of the case, the applicable conditions,approval procedures, the use of the obtained materials, supervision and reliefprograms.