智能手机搜查的法律规制与隐私权保护探究
Research on the Legal Regulation and Privacy Protection of Smartphone Searches

智能手机的使用渗透进当今生活的方方面面，因而手机中存储的数据信息能构建出每个个体的画像，成为侦查机关打击犯罪的关键证据。但同时，手机也存有机主的隐私信息，若侦查人员不加限制地对数据进行搜查，公民的隐私权将极易遭受侵犯。个人信息保护的呼声逐步高涨，平衡公民隐私权和国家执法权对我国建设社会主义法治国家的重要性不言而喻。研究发现，我国在智能手机搜查审批、范围、监督、救济等方面均缺乏系统的法律规制，搜查权的合法性基础十分薄弱，对于搜查中的隐私权保护存在不足。当前英美法系国家对于隐私权和执法权的平衡已开展了一系列研究，并取得丰富成果。本文首先着眼于当前智能手机搜查领域的争议点，其次从立法和实践层面剖析了我国在该领域存在的不足。最后在探讨国外有益经验和做法的基础上，提出应当确立审批机制、限制搜查范围、设置监督体制以及拓宽救济途径等措施，完善制度设计，加强权利保障，以期更好地平衡个人隐私权和国家利益之间的关系。
The pervasive utilization of smartphones in contemporary society has facilitated the compilation of comprehensive individual profiles through the data stored within them, thereby serving as pivotal evidence in criminal investigations conducted by law enforcement agencies. However, it is important to note that these devices also contain sensitive personal information pertaining to their owners, and if investigators search for such data without restriction, it would be relatively simple to violate citizens’ privacy rights. The call for the protection of personal information has gradually risen, it is of paramount importance to strike a balance between citizens’ right to privacy and the state’s law enforcement powers in order to build a socialist rule of law in China. The study found that China lacks systematic legal regulation in the aspects of smartphone search approval, scope, supervision and relief, that is, the legitimate basis of the search power is very weak, and the protection of privacy rights during searches is inadequate. Currently, common law countries have conducted a series of studies on the balance between the right to privacy and law enforcement powers, and have had fruitful outcome. This paper initially addresses the current controversial issues pertaining to the domain of smartphone search, subsequently analyzing the deficiencies of China in this field from both legislative and practical perspectives. And then a series of measures are proposed on the basis of exploring the useful experience and practices abroad, such as the establishment of approval mechanisms, the limitation of search scope, the establishment of a supervisory system and the broadening of relief channels. These solutions are to enhance the design of the system and reinforce the rights protection, thereby achieving a better balance between the individual’s right to privacy and the national interest.