浅谈《物权法》对行政权行使的影响——以交通管理为视角

<物权法>是确认、利用和保护公民财产权的基本法律,同时对行政机关的行政权具有积极的规制作用,它的颁布和实施是我国法治发展成熟的体现,具有里程碑式的意义.虽然其实施已快三年了,然而交通管理部门在现实执法过程中却没有足够地重视这部法律,往往出于执法的便利对公民合法的财产利益于不顾.因此,交通管理过程中应当贯彻物权法精神,避免侵犯合法物权现象的发生.     

The law and the sublime: Rethinking the self and its boundaries

Christine Battersby has argued that it is Kant (and not Descartes) who provides the paradigm model of what it is to be a self in modernity. The Kantian self is established in opposition to its other. The body is commonly envisaged as a container, with selfhood as something that is defended against the outside. In contrast, she proposes a feminist reworking of such a model of selfhood, applicable to both men and women, in which the self and other emerge over time through patterns of relationality. This paper introduces Battersby’s work by focusing upon her early analysis of Kantian aesthetics, in particular the sublime. The aim is to draw out some of the legal and political implications of her work, particularly with regard to the common law’s developing conception of privacy. This is carried out by distinguishing her ontological position from the psychology of Carol Gilligan and then by considering the overlapping concerns of Jennifer Nedelsky in the area of legal theory.

Profiling the mobile customer – Is industry self-regulation adequate to protect consumer privacy when behavioural advertisers target mobile phones? – Part II

Mobile customers are increasingly being tracked and profiled by behavioural advertisers to enhance delivery of personalized advertising. This type of profiling relies on automated processes that mine databases containing personally-identifying or anonymous consumer data, and it raises a host of significant concerns about privacy and data protection. This second article in a two part series on “Profiling the Mobile Customer” explores how to best protect consumers’ privacy and personal data through available mechanisms that include industry self-regulation, privacy-enhancing technologies and legislative reform.¹ It discusses how well privacy and personal data concerns related to consumer profiling are addressed by two leading industry self-regulatory codes from the UK and the U.S. that aim to establish fair information practices for behavioural advertising by their member companies. It also discusses the current limitations of using technology to protect consumers from privacy abuses related to profiling. Concluding that industry self-regulation and available privacy-enhancing technologies will not be adequate to close important privacy gaps related to consumer profiling without legislative reform, it offers suggestions for EU and U.S. regulators about how to do this.²     

Understanding the notion of risk in the General Data Protection Regulation

The goal of this contribution is to understand the notion of risk as it is enshrined in the General Data Protection Regulation (GDPR), with a particular on Art. 35 providing for the obligation to carry out data protection impact assessments (DPIAs), the first risk management tool to be enshrined in EU data protection law, and which therefore contains a number of key elements in order to grasp the notion. The adoption of this risk-based approach has not come without a number of debates and controversies, notably on the scope and meaning of the risk-based approach. Yet, what has remained up to date out of the debate is the very notion of risk itself, which underpins the whole risk-based approach. The contribution uses the notions of risk and risk analysis as tools for describing and understanding risk in the GDPR. One of the main findings is that the GDPR risk is about “compliance risk” (i.e., the lower the compliance the higher the consequences upon the data subjects' rights). This stance is in direct contradiction with a number of positions arguing for a strict separation between compliance and risk issues. This contribution sees instead issues of compliance and risk to the data subjects rights and freedoms as deeply interconnected. The conclusion will use these discussions as a basis to address the long-standing debate on the differences between privacy impact assessments (PIAs) and DPIAs. They will also warn against the fact that ultimately the way risk is defined in the GDPR is somewhat irrelevant: what matters most is the methodology used and the type of risk at work therein.     

GPS tracking and the right of privacy

Government authorities and law enforcement agencies start using the satellite-based GPS tracking technology more often for various purposes. Due to its unique technical features, GPS tracking poses a much greater threat to the right of privacy compared with traditional electronic tracking techniques, such as the Beeper. Comparisons are extensively analyzed and a number of the US cases are quoted for illustrations. In the end, several key principles are proposed to facilitate the supervision of investigation behaviors in China.     

Open-source intelligence and privacy by design

As demonstrated by other papers on this issue, open-source intelligence (OSINT) by state authorities poses challenges for privacy protection and intellectual-property enforcement. A possible strategy to address these challenges is to adapt the design of OSINT tools to embed normative requirements, in particular legal requirements. The experience of the VIRTUOSO platform will be used to illustrate this strategy. Ideally, the technical development process of OSINT tools is combined with legal and ethical safeguards in such a way that the resulting products have a legally compliant design, are acceptable within society (social embedding), and at the same time meet in a sufficiently flexible way the varying requirements of different end-user groups. This paper uses the analytic framework of privacy design strategies (minimise, separate, aggregate, hide, inform, control, enforce, and demonstrate), arguing that two approaches for embedding legal compliance seem promising to explore in particular. One approach is the concept of revocable privacy with spread responsibility. The other approach uses a policy mark-up language to define Enterprise Privacy Policies, which determine appropriate data handling.     

Digital identity,privacy and the right to identity in the United States of America

This article analyses digital identity as an emergent legal concept in the United States of America, as a consequence of the move to place all federal government services on-line. The features and functions of digital identity and its legal nature are examined, and the consequences are considered.     

The retention of personal information online: A call for international regulation of privacy law

New technologies permit online businesses to reduce expenses and increase efficiency by, for example, storing information in “the cloud”, engaging in online tracking and targeted advertising, location and tracking technologies, and biometrics. However, the potential for technology to facilitate long term retention of customers' personal information raises concerns about the competing right of individuals to the privacy of their personal information. Although the European Commission has recently released a proposal for regulation to “provide a data subject with the right to be forgotten and to erasure”, neither the OECD Privacy Guidelines nor the APEC Privacy Framework includes any requirement to delete personal information. While New Zealand includes a “limited retention principle” in the Privacy Act 1993, apart from one limited exception the privacy principles cannot be enforced in court. Taking New Zealand privacy law as an example, this paper examines the issue of retention of customer data, explains why this is a serious problem and argues that although it could be addressed by appropriate amendments to domestic laws, domestic privacy legislation may not be sufficient in an online environment. In the same way as other areas of law, such as the intellectual property regime, have turned to global regulatory standards which reflect the international nature of their subject matter, international privacy regulation should be the next stage for the information privacy regime.     

New Challenges Posed by Robots to China’s Civil Code in the Age of Artificial Intelligence

In the age of artificial intelligence (AI), robots have profoundly impacted our life and work, and have challenged our civil legal system. In the course of AI development, robots need to be designed to protect our personal privacy, data privacy, intellectual property rights, and tort liability identification and determination. In addition, China needs an updated Civil Code in line with the growth of AI. All measures should aim to address AI challenges and also to provide the needed institutional space for the development of AI and other emerging technologies.