重塑大數據時代下的隱私權法理──以隱私權概念為主要內容

Rethinking the Theory of the Right to Privacy in the Age of BIG DATA—From the Perspective of the Concept of the Right to Privacy

大數據革命給隱私權保護提出了新挑戰：原有公私對立的「空間二元論」不再適用，原有處於秘密狀態的資訊也難以再完全保密。因此我們有必要以重構隱私權的概念為開端重塑隱私權法理。本文首先從美國具有代表性的隱私權概念入手，檢討並總結傳統學說中三個問題，即「空間二元論」、概念中心化、隱私和隱私權未區分。接著，本文再提出重塑隱私權概念的方法，即在區分隱私和隱私權的基礎上，堅持隱私權概念的去中心化、抓住空間鏈條在隱私權分析中的重要性，通過隱私權的分類對隱私權進行定義。

BIG DATA is about two shifts of mindset. The first is the ability to analyze vast amounts of data about a topic. The second is a growing respect for correlations. So it is more possible to create digital dossiers that cover much of a person’s information, behavior, mentality and so on. At the same time, BIG DATA brings a big challenge to the protection of the right to privacy: the old theory of “dualism of space” that claims the space separates into the public and the private part is behind the time and the information that was previously kept secrecy is considerably difficult to keep away from collection. In this social context, it is necessary to rethink the theory of the right to privacy beginning with reviewing the concept of the right to privacy. In this article, I first introduce five typical theories about “what is the right to privacy”. Then I analyze and summarize the three problems existing in the five traditional theories: holding the idea of “dualism of space”, locating the essence of the right to privacy, confusing privacy with the right to privacy. Next, I set forth some new approaches for conceptualizing privacy. In doing so, I completely underline the difference between privacy and the right to privacy. Finally, I argue that the concept of the right to privacy does not have a universal and core feature and emphasize the importance of space in rethinking the concept of the right to privacy to define the concept of “information privacy” and “decisional privacy”.