The Practical Dilemma Of The Right To Communicate And Its Constitutional Response

In the system of protection of the fundamental rights of citizens in our Constitution,the importance and protection of the right of communication is so high that it can even be said to exceed the intensity of the protection of other fundamental rights,and the right of communication is the only constitutional reservation among the fundamental rights.Article 40 of our Constitution provides that "The freedom and secrecy of communication of citizens of the People’s Republic of China shall be protected by law.No organization or individual may,for any reason,infringe upon the freedom and secrecy of communication of citizens except for the needs of national security or the pursuit of criminal offences,and the inspection of communication by the public security organs or procuratorial organs in accordance with the procedures prescribed by law." In other words,only the public security organs or procuratorial organs,which are special subjects under the Constitution,can conduct inspection of communications for the special purpose of "national security" or the need to investigate"criminal crimes.No other organization or individual can violate the right to communicate for any reason.However,there are inconsistencies in both law and practice with the provisions of the Constitution.In terms of legal provisions,this paper analyzes some laws and regulations other than the Constitution,such as the Civil Procedure Law,the Securities Law,the State Security Law,the Counterintelligence Law,the Prison Law,the Telecommunications Regulations,the Gansu Provincial Road Traffic Safety Regulations,etc.Some of the provisions in these legal documents have "special subjects" and "special subjects" as stipulated in Article 40 of the Constitution.In practice,there are some practices such as the traffic police’s access to citizens’ phone records when investigating traffic accidents,the court’s access to phone records,the restrictions on the right of communication for defendants in custody or Some practices in practice,such as the traffic police’s access to citizens’ phone records when investigating traffic accidents,the court’s access to phone records,the restriction of communication rights for defendants or persons serving prison sentences,the public security authorities’ inspection of Internet group information,and the city administration’s mandatory shutdown of phone numbers on small advertisements,are also discussed.This paper discusses the reasons for the problems in law and practice,and concludes that the main reason is the friction between the need for public authorities to check communications and the high degree of constitutional protection of the right to communicate,resulting in the circumvention of Article 40 of the Constitution in some provisions.For the solution of this problem,this paper proposes a proposal for the realization of the right to communication in both content and procedural parts.The content approach is to provide a layered protection of the right to communication in Article 40 of the Constitution.The content of communication is the entity of content in communication,which belongs to the scope of protection of the right to communication and can only be inspected by public security organs,procuratorial organs or state security organs in accordance with legal procedures for the needs of national security or tracing criminal crimes,and the restrictions on the content of communication should be taken as constitutional reservation;non-content communication information is communication auxiliary information,such as mailing address,postal code,communication account number,communication The non-content communication information is communication auxiliary information,such as communication address,postal code,communication account number,communication start and end time,IP address,e-mail address,etc.,which also falls into the scope of protection of communication right.Since the non-content communication information is less important than the communication content,in order to balance the protection of communication content from infringement and protection of public interest,and to prevent the widespread violation in practice caused by the large scope and high degree of protection of communication right,the protection of the non-content communication information should be lower than the communication content,and legal reservation should be adopted to inspect the non-content information can only be made due to the provisions of the law,and administrative organs shall not make decisions without authorization;pure personal information involved in communications such as name,ID number,birth date,gender,ethnic group,etc.,is not generated in communications,but is inherent to citizens,and such information shall fall within the scope of protection of the right to personal information,which has little to do with communications,and for pure personal information shall be protected in accordance with the The right to personal information should be protected,and the restriction of the right to personal information of citizens can only be made due to the provisions of the law,and the administrative organ shall not make the decision without authorization;procedural practices are: 1.abolishing the laws and regulations that have undue interference with the right to communication through filing review;2.developing meticulous and strict communication inspection procedures to prevent the overstepping of public power;3.improving the relief of the infringement of the right to communication in three aspects.This paper attempts to propose practices and countermeasures in both content and procedure.