論資訊隱私：科技與商業發展脈絡下的觀察

Information Privacy: A Contextualized Analysis

自網際網路商業化以來，科搬發展與相應而生之市場與社會規範，都朝著鼓勵資訊流通與分享的方向前進。而面對此等趨勢，一般人經常對個人隱私的保護表現出一種情感與行動分離的矛盾。這一方面是因為我們已經嘗到了資訊流通所帶來的具體好處，不願輕易放棄。另一方面也因為我們瞭解到抵抗趨勢的困難。既然科技、市場與文化面的動能，都在將我們朝更透明的方向牽引，如果還有哪一個社會機制可以帶動更深刻的思考，以尋找最適當的平衡對，恐怕非法律莫屬。只是這樣的任務，恐怕不是任何一個憲法機關得以獨力承擔，更非盲目移植歐美法制就能稱善。只有通過立法、執法與司法審查等程序之運轉，有效啟發、引領相關的民主對話，讓社會的共識有較大的機會得以自然的浮現，或許適當的資訊隱私保護法制終將水到渠成。

Law does not live in a vacuum, and it is jurists'salient duty to (re)interpret law in modern architectural, social, and economic context. For a relatively youug legal concept like privacy-this has proven to be a tall order. Compared to other legal concepts formed and raised in ancient and relatively static past, privacy is particularly elusive for it has practically grown with modern technology. To understand privacy we must start by understanding modern information and communications technology. The Internet and the online commerce that has grown during the last two decades have been moving us toward a more transparent society that rewards and encourages self-expression and information flow. Netizens have embraced the development because it goes well with the 'free'-in both senses of the word-tradition of the Internet. Many do lament the gradual erosion of privacy, but at the same time we do little to reverse the trend for not only we are collectively ambivalent about privacy, for fear of loosing what we currently enjoy, but also we are hampered by the collective action problem.Since technology, market ad social forces are all pulling us toward the destination of zero privacy, law may be the only modality of social control that could give us some room of moderation and give privacy a fair fight. And yet it is not a task for the legislature, executive, are judiciary alone, nor can it be done in haste. We will not get there by doing simple logical exercises from the lofty premise of human dignity, nor will we succeed by ransplanting foreign law blindly. If we may have a series of constructive discourse among all stake holders with the help of healthy interactions among all constitutional branches, hawever, we will have a choice in eventually striking the right balance for privacy protection.