Recording & Review Pt. 5: “Freedom and Privacy of Correspondence”

An institute affiliated with China’s top court reported in 2017 that using cellphones while driving was one of the main causes of traffic accidents in China. Between 2012 and mid-2017, says the report, distracted driving caused about 11% of all traffic accidents that led to civil lawsuits, even though such behavior had been outlawed since at least 2004. Enforcement is lacking, however, because distracted driving is relatively hard to detect (even with China’s ubiquitous surveillance cameras).

To combat this problem, several provinces decided to lend the police a hand. They passed what we call “phone-search provisions”: regulations that allow the police to inspect the communication records of motorists involved in accidents. Those records could provide the definitive proof of whether a driver was using cellphone just before an accident, thereby helping the police determine the liability of each party and punish the cellphone use itself.

Granting the police such authority seems like a sensible enough policy. But is it legal?

The NPCSC Legislative Affairs Commission (LAC or Commission) did not think so. According to a March Southern Metropolis report, the Commission decided last year that the phone-search provisions “implicate the citizens’ freedom and privacy of correspondence and have no basis in [national] law” [缺乏法律依据] and has asked the provinces to “correct” their rules.

The LAC’s decision has not been made public and its exact reasoning is unclear. But to us, the decision has an inescapable constitutional dimension. It accords with the Commission’s historically expansive view of the constitutional “freedom and privacy of correspondence” [通信自由和通信秘密] (P.R.C. Const. art. 40). The decision thus may well be the result of the Commission’s first-ever constitutional review under the Legislation Law [立法法] (that we know of).

Before we turn to that constitutional provision, we will first explain the phone-search provisions at issue and then discuss the scope of provincial legislative authority.

Distracted Driving Laws

In 2003, the NPCSC enacted China’s first traffic law, the Road Traffic Safety Law (RTSL) [道路交通安全法]. Motorists’ violations of traffic “regulations” [法规]—rules promulgated by the State Council or local legislatures—are punishable by a fine of between 20 and 200 RMB (art. 90). The RTSL authorizes provincial legislatures to set the specific amount to be imposed within their respective jurisdictions (art. 123).

In early 2004, the State Council promulgated its RTSL Implementing Regulations. Article 62, item 3 prohibits “conduct that impedes safe driving, such as dialing or answering handheld phones and watching television.” The four provinces we are concerned with here—Jiangxi, Heilongjiang, Inner Mongolia, and Gansu—all incorporated this prohibition into their provincial road safety regulations.[1] Jiangxi and Inner Mongolia went further by explicitly outlawing all “use” of handheld phones when driving, and Gansu imposed the statutory maximum fine of 200 RMB for each violation.

When adopting those regulations, the four provincial legislatures also included the phone-search provisions. These provisions, as noted above, allow the traffic police to examine the communication records of drivers involved in an accident. Gansu’s provision (art. 76) is representative:

As needed to investigate traffic accidents, the traffic management departments of public security organs [i.e., the traffic police] may examine or copy . . . the communication records of parties to a traffic accident, and when necessary, may extract or freeze the relevant information or materials in accordance with law . . . .

因调查交通事故案件需要，公安机关交通管理部门可以查阅或者复制……交通事故当事人的通讯记录，必要时可以依法提取和封存相关信息、资料……

The RTSL and the RTSL Implementing Regulations—both superior in force to provincial regulations—do not contain any analogous provision, but do not prohibit such power grant to the police, either.

Provincial Legislative Authority

Can a provincial legislature grant the police any authority not already conferred by national legislation? No, contended a law professor interviewed by the Southern Metropolis. The outlet’s representation of the LAC’s decision—that the phone-search provisions “have no basis in [national] law”—also seems to support the professor’s view at first blush.

Yet we beg to differ. In our view, the provinces’ legislative authority is much broader than what that professor’s answer suggests. It was not the RTSL or the RTSL Implementing Regulations that doomed the phone-search provisions.

Under the Legislation Law, a provincial legislature may enact “local regulations” [地方性法规] to “implement the provisions of laws or administrative regulations” (art. 73, para. 1, item 1) on two conditions: the local regulation—

1. must respond to that province’s “specific situations and actual needs” [具体情况和实际需要]; and
2. must “not contravene the Constitution, laws, or administrative regulations” [不同宪法、法律、行政法规相抵触] (art. 72, para. 1).

How do the phone-search provisions fare under this rule? To start, they all arguably “implement” national road safety legislation because they give the police a tool to enforce the national ban on distracted driving. The provisions likely also address local concerns because the four provinces could all had a serious distracted-driving problem and could all have determined that the police should be given greater power to combat it.

As to whether they “contravene” any superior legislation—i.e., “the Constitution, laws, or administrative regulations”—we turn to the LAC’s commentaries on the Legislation Law.[2] There, the Commission identifies five situations where a provision in a local regulation would “contravene” superior legislation:

1. where it provides for the opposite of a clear provision in superior legislation;
2. where it effectively counteracts a provision in superior legislation, though not an opposite of the latter;
3. where it goes against the “legislative purpose and spirit” of superior legislation;
4. where it violates the division of legislative authorities between the central and local governments under the Legislation Law; or
5. where it exceeds the provincial legislature’s authority under the Administrative Licensing Law [行政许可法], the Administrative Penalties Law [行政处罚法], or the Administrative Compulsion Law [行政强制法].[3]

The phone-search provisions thus do not contravene the RTSL or the RTSL Implementing Regulations, because:

1. they cannot be the “opposite” of anything in national legislation if the latter does not prohibit what they allow;
2. they do not “counteract” any provision in national legislation; rather, they help enforce the national ban on cellphone use when driving;
3. they, for the same reason, do not contradict the “purpose or spirit” of the two pieces of national legislation;
4. they do not violate the central-local division of legislative powers because they implement national legislation based on local conditions (see discussion above); and
5. they do not require any administrative license, do not by themselves impose any penalty, and do not concern administrative compulsion.[4]

In our view, therefore, the LAC could not have rejected the phone-search provisions simply because they grant the police certain authority not expressly authorized—but also not prohibited—by national legislation. Doing otherwise would unduly restrict the provinces’ legislative authority under the Legislation Law, and would also contradict the Commission’s prior view on this matter.

Freedom and Privacy of Correspondence

If the phone-search provisions do not contravene any substantive national statutes or regulations, then it follows that the LAC must have rejected them on constitutional grounds. The Southern Metropolis hinted as much, reporting that, in the Commission’s view, those provisions “implicate the citizens’ freedom and privacy of correspondence.”

The “freedom and privacy of correspondence” is protected by article 40 of China’s Constitution. This article reads in full (our emphasis):

The freedom and privacy of correspondence of citizens of the People’s Republic of China are protected by law. No organization or individual may, on any ground, infringe upon citizens’ freedom and privacy of correspondence, except in cases where, to meet the needs of national security or of criminal investigation, public security or procuratorial organs are permitted to examine correspondence in accordance with the procedures prescribed by law.

中华人民共和国公民的通信自由和通信秘密受法律的保护。除因国家安全或者追查刑事犯罪的需要，由公安机关或者检察机关依照法律规定的程序对通信进行检查外，任何组织或者个人不得以任何理由侵犯公民的通信自由和通信秘密。[5]

The LAC explained its view on this article in its 2003 General Comments on the Constitution [宪法通释]. The “core” of the freedom and privacy of correspondence, it said, is to “protect the citizens’ right to privacy.” This right serves to “safeguard human dignity and freedom, further realize the citizens’ other rights and freedoms, and promote people’s own development.” What this Article 40 protects is “an important constitutional right.”

The Commission thus read Article 40’s protection broadly. The term “correspondence,” it explained, encompasses both postal communications and telecommunications. And the “privacy of correspondence” covers “not only the contents of communications, but also materials related to those contents.” For telecommunications, therefore, Article 40 privacy protects not only the contents of texts, phone calls, and emails, but also related information such as phone numbers, email addresses, and the time, frequency, and location of communications.

The Commission adopted a correspondingly narrow reading of Article 40’s exception clause. According to its General Comments, the government may examine private correspondence only if the following three conditions are met[6]:

1. The examination is necessary to safeguard “national security” or to investigate crimes;[7]
2. The examination may be conducted only by the police, state security organs,[8] or procuratorates; and
3. The examination must follow the procedures prescribed by statutes.[9]

To illustrate Article 40’s scope under the LAC’s interpretation, consider this 2003 case. As part of an administrative lawsuit, a Hunan court sought a party’s call log from a local China Mobile branch, invoking its authority under then-article 65 (now-article 67) of the Civil Procedure Law [民事诉讼法].[10] China Mobile refused, citing Article 40 of the Constitution, but the court slapped it with a fine. The company then asked the Hunan legislature to interpret whether the Constitution bars the court from accessing that person’s call log despite its statutory authority to do so. The legislature opined that because the courts are not listed in Article 40 and because a person’s call log is protected “correspondence,” the log is beyond the courts’ evidence-collecting power under the Civil Procedure Law. But considering the matter outside its purview, the Hunan legislature referred China Mobile’s inquiry to the LAC. In a terse one-sentence reply, the Commission agreed with the Hunan legislature’s view.[11]

(As we have previously discussed, however, the Commission’s replies to “legal inquiries about specific questions” [有关具体问题的法律询问] have questionable legal force. At the very least they are not universally binding. Telecom companies thus still frequently face the dilemma of either forgoing valid constitutional objections, or raising them only to risk fines for obstructing evidence collection by the courts.)

Unconstitutionality of Phone-Search Provisions

Under the LAC’s three-part test, the four provinces’ phone-search provisions appear to have violated Article 40. Although the traffic police (as one of the enumerated government entities) may theoretically examine private correspondence under that Article’s exception clause, the phone-search provisions do not appear to satisfy the clause’s other requirements—at least as applied to most traffic accidents.

First, the provisions do not come within Article 40’s national-security exception. They granted the authority to inspect motorists’ phones specifically to the traffic police. But under current law, the traffic police do not have jurisdiction over national security matters. And even if they did, traffic accidents rarely implicate national security. The provisions thus violate Article 40 to the extent they authorize the traffic police to inspect drivers’ private communications in every accident.

Second, in most cases, the phone-search provisions do not fall within the criminal-investigation exception, either. The overwhelming majority of traffic accidents (like slight rear-ends) do not amount to crimes.[12] That exception thus does not allow the traffic police to exercise their phone-search authority in every accident. (To the extent the phone-search provisions granted the police additional criminal investigative authority, they may have also exceeded the provinces’ legislative authority vis-à-vis criminal procedural laws. See Legislation Law art. 8, item 10. But this point is outside the scope of this post.)

Finally, the phone-search provisions may be unconstitutional for the independent reason that they are not found in statutes. As discussed in footnote 5, two prominent legal scholars and the LAC all suggested that the term “law” [法律] in Article 40’s second sentence should mean “statutes.” We think this interpretation is likely correct (or at least it should be). If so, then no local regulation may constitutionally grant the police authority to inspect private communications. Period.

Subsequent Development & Implications

As expected, the four provinces have been slow to comply with the LAC’s decision. As of this writing, only Inner Mongolia has changed its phone-search provision (on May 31, 2019). The recent amendment to article 50 of its RTSL implementing rules deleted the phrase “the communication records of parties to a traffic accident.” It thus appears that the Commission has opted not to allow the provinces to limit the traffic police’s phone-search authority to criminal investigations. We expect the other three provinces to make similar changes to their provisions.

Our discussion so far hopefully has made clear that Article 40 of the P.R.C. Constitution—IF faithfully implemented according the interpretations we have cited here—would operate as a significant constraint on government authority. In situations without connection to crimes or national security, private correspondence would be beyond the reach of most government entities. For instance, prison authorities would not be able to constitutionally inspect the contents of inmates’ correspondence, despite article 47 of the Prisons Law [监狱法].[13] We suspect that many telecommunications and cybersecurity laws would also be constitutionally problematic if Article 40 is taken seriously.

Article 40’s constraint on government authority would be substantial even when “national security” is given a capacious definition. The requirement that the officials follow statutory procedures means that no government entity other than the NPC or its Standing Committee may authorize the examination of citizens’ correspondence. Not any local government. Not any ministry. Not even the State Council. Even when the NPC or the NPCSC does so, Article 40 would likely require it to prescribe a lot more procedures for the examination of private correspondence than what is currently available under the Criminal Procedure Law and national security laws—which is essentially nothing.[14]

Thanks to Taige Hu for research assistance.

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[1] See Jiangxi Measures Implementing the “P.R.C. Road Traffic Safety Law” [江西省实施《中华人民共和国道路交通安全法》办法] art. 84, item 2; Heilongjiang Road Traffic Safety Regulations [黑龙江省道路交通安全条例] art. 133, item 6; Inner Mongolia Measures Implementing the “P.R.C. Road Traffic Safety Law” [内蒙古自治区实施《中华人民共和国道路交通安全法》办法]” art. 59, item 13; Gansu Road Traffic Safety Regulations [甘肃省道路交通安全条例] art. 82, item 17.

[2] Office for State Law of the NPCSC Legislative Affairs Commission [全国人大常委会法制工作委员会国家法室], Commentaries on the P.R.C. Law on Legislation [中华人民共和国立法法释义] (2015). Although the Commission’s commentaries have no legal force, they should be afforded great weight because the Commission is charged with drafting legislative interpretations and conceivably future constitutional interpretations as well.

[3] See id. at 303.

[4] Under the Administrative Compulsion Law, “administrative compulsion” is defined to consist of “administrative compulsory measures” [行政强制措施] and “administrative compulsory enforcement” [行政强制执行] (art. 2, para. 1).

[5] Two legal scholars argued that the word “法律” in the second sentence of Article 40 should mean “statutes”—legal authorities enacted by the NPC and its Standing Committee. See Han Dayuan [韩大元] & Wang Guisong [王贵松], The Meaning of “Law” in the Text of China’s Constitution [中国宪法文本中“法律”的涵义], Law Sci. [法学], no. 2, 2015, at 42, 50. The LAC’s General Comments on the Constitution [宪法通释]—urging the “highest legislature” to legislate on the restriction of private correspondence—suggest that it took the same view.

[6] Article 40 also applies to private inference with the freedom and privacy of correspondence, but here we focus on its restriction of government action.

[7] As for the national-security exception, the LAC appeared to suggest that the government can validly invoke it only to deal with “acts endangering national security” (as defined by the now-repealed 1993 National Security Law). Even so, “national security” is still a highly malleable concept in China and we recognize that this exception will not constraint the government in a subset of non-criminal cases. As for the criminal-investigation exception, the LAC explained that it does not justify governmental intrusion unless the government is investigating “serious crimes” and has exhausted all other means of investigation.

[8] A 1983 NPCSC decision authorizes state security organs—“[b]eing of the nature of state public security organs [国家公安机关]”—to exercise the public security organs’ powers under the Constitution.

[9] It appears that the Criminal Procedure Law [刑事诉讼法] itself does not provide for any procedures for the search of cellphones, although it is supplemented by several interpretations by the criminal justice authorities that do include some procedural requirements. See Chen Yongsheng [陈永生], Legal Regulation of Searching Mobile Phones in Criminal Proceedings: A Research Using the Riley Case in the United States as an Example [刑事诉讼中搜查手机的法律规制——以美国赖利案为例的研究], Mod. L. Sci. [现代法学], Nov. 2018, at 135, 146–148; see also, e.g., Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security Provisions on Several Questions Regarding the Collection, Extraction, Review, and Judgment of Electronic Data in the Handling of Criminal Cases [关于办理刑事案件收集提取和审查判断电子数据若干问题的规定]. Yet it is unclear whether those procedures would pass constitutional muster.

[10] It is unclear why the court—in this administrative case—relied on the 1991 Civil Procedure Law, but not the 1989 Administrative Litigation Law [行政诉讼法], which also empowered the courts to collect evidence. In any case, the Hunan court could not have constitutionally accessed the party’s call log under either statute, per the LAC’s view.

[11] For a similar view, see Sun Yifei [孙艺飞], Resolving the Conflict Between the Right to Freedom of Correspondence and the Power to Investigate and Collect Evidence [通信自由权与调查取证权冲突之消解], Shandong Justice [山东审判], no. 3, 2013, at 74. For opposing views on whether a court can constitutionally access an individual’s call log, see these four short scholarly essays published by the People’ Court Daily in 2004.

[12] See Criminal Law art. 133 (criminalizing only traffic accidents that cause death(s), serious injuries, or serious property damage, as well as hit-and-runs and accidents with “other especially serious circumstances”); Interpretation of the Supreme People’s Court on Several Questions Regarding the Specific Application of Law in Hearing Criminal Traffic Accident Cases [最高人民法院关于审理交通肇事刑事案件具体应用法律若干问题的解释] (interpreting that Criminal Law provision).

[13] See Tang Zhongmin [唐忠民], Two Issues on Protecting the Citizens’ Freedom and Privacy of Correspondence [公民通信自由和通信秘密保护的两个问题], Law Sci. [法学], no. 12, 2007, at 13, 16–17.

[14] See supra note 9 and accompanying text.

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