The Constitutionality Of The Court’s Retrieval Of Citizen’s Call Records

There are many disputes that have often arisen from practices of "courts retrieving call records".In practice,the courts have differed on whether to retrieve call records.The main problems are the inconsistent definition of the nature of call records,the inconsistent definition of the nature of "courts retrieving call records",the inconsistent retrieval standards,the inconsistent argumentation process,and the unclear retention rules.In theory,there are mainly two kinds of views:unconstitutional theory and constitutionality theory.The unconstitutional theory believes that the court is not the subject of communication inspection.And the specific interpretation scheme of constitutionality theory is different.Some views believe that the call records are not the secret of communication while others think that the call records are the secret of communication,but the court’s retrieval of the phone records is not the communication inspection.Some argue that the court’s recourse to"non-personal communications" is constitutional.Some views hold that the court’s power of investigation and evidence collection is an important guarantee of judicial power.In terms of the meaning and scope of protection of communication secrets,citizens’ call records are communication secrets.However,the provisions of communication inspection are very strict.If "censor correspondence" is considered the only communication restriction way,it will led to constitutional disputes among public authority restricting citizens’ communication rights in practice.In order to avoid constitutional dispute,the public authority constrains the protection scope of citizens’ communication secrets,which is not conducive to the protection of citizens’ communication rights.In order to meet the needs of practice and protect citizens’ communication secrets more effectively,the article 40 of the Constitution of China should be interpreted.In addition to "censor correspondence",the article 40 of the Constitution of China may admit of other ways to restrict the right to communication."Censor correspondence" is a way to restrict the content of correspondence,which needs to meet the principle of aggravated legal reservation.Other ways of restricting information on communication are permitted,but subject to the general legal reservations.The basis for the court to retrieve the call records is the Civil Procedure Law or the Administrative Procedure Law,which conforms to the principle of legal retention,The most important is how to achieve the substantive constitutionality.In practice,the court should make full use of the principle of proportionality to determine whether it supports the retrieval of call records,formulate unified entity standards and procedural rules for retrieving call records,standardize the process of reasoning,and formulate rules for retaining call records,so as to strengthen the constitutionality of the court’s retrieval of citizen’s call records and achieve the balance between the court’s right to investigate and collect evidence and citizens’ communication secrets.