Protection Obligation of Administrative Law for the Realization of Human Rights in Digital Age-Centered on Administrative Law Enforcement Procedures

I. Overview of Administrative Law Enforcement Procedures in the Digital Age

The Fourth Revolution of Science and Technology has quietly begun, and the digital age is driving profound changes in the way people work and live. Xi Jinping, General Secretary of the Communist Party of China Central Committee, stressed, “We shall use big data to improve the level of modernization of national governance. We need to establish and improve the mechanism of big data to assist scientific decision-making and social governance, promote innovations in government management and social governance models, and make government decision-making more scientific, social governance more precise, and public services more efficient”. The Digital transformation of the government is an inevitable choice.

Xi Jinping, General Secretary of the Communist Party of China Central Committee, clearly stated that, “A modern country must be a country ruled by law.” The rule of law is the essential requirement and important guarantee of Chinese-style modernization. There is an inherent logical relationship between national modernization and the rule of law. Administrative organs at all levels undertake important responsibilities in promoting economic and social development, managing social affairs, and serving the people. The administration of administrative organs in accordance with the law is a key factor in the modernization of national governance system and capacity. In the face of the overall strategy for the great rejuvenation of the Chinese nation and the profound changes unseen in the world in a century, in both modernizing China's governance system and capacity and meeting the people's ever-growing needs for a better life, new and higher requirements have been put forward for building a law-based government. Administrative organs at all levels shall fully incorporate the procedures of administrative law enforcement into the track of the rule of law, comprehensively enhance their abilities to administer according to law, build a higher degree of civilization of rule of law through the modernization of rule of law, and lay a solid institutional foundation for Governance of China.

As a new mode of government operation, digital government is supported by a new generation of information technologies such as cloud computing, big data, artificial intelligence and 5G. By building new mechanisms, platforms and channels of government affairs driven by big data, it further optimizes and adjusts the organizational structure, operation procedures and management services within the government, and comprehensively improves the government's ability to perform its duties in the fields of economy, social governance, public services and environmental protection. As an emerging governance model, it is required to strictly enforce the rule of law and strictly administer according to law, which is also the inevitable requirement of government administrative acts.

How do administrative law enforcement procedures protect digital human rights? In digital age, everyone is both the producer and the consumer of data information, and is both a traditional natural person and a new type of digital person. Technology has brought people the dividends of digital development, but they are also facing algorithmic discrimination and algorithm manipulation and other difficulties. The purpose of building a digital government is to provide high-quality services to the people, strengthen the protection of digital citizens' rights, and improve their participation and quality of life. Therefore, digital administration should never be alienated as a means to restrict and control people. Protection of digital human rights and building of an open, operational, safe and reliable Internet environment are important indicators for the construction of a law-based digital government in China.

II. Change of the Philosophy of Administrative Law Enforcement in the Digital Age

(1) From technology governance to integrated governance of technology and rule of law

Modern science and technology can be used to significantly improve the efficiency of governance. However, man's subjective initiative is easy to be ignored due to too much reliance on technology, which will lead to the alienation of science and technology. Take the field of public transport as an example. Relying too much on technology but ignoring procedural justice, will be easy to cause mechanical law enforcement and other problems. Under the background of the continuous deep integration of digital technology and government governance, we should focus on protecting human rights and realize human rights protection in the process of reconstructing service-oriented government. The mission of rule of law is to reduce the risk and irrationality that may be brought about due to the development of science and technology, and to control the threat of science and technology to human civilization, dignity and future. Administrative organs should attach importance to the application of digital technology and establish the philosophy of optimizing the way of governance with science and technology. For instance, big data can comprehensively and objectively show the information of research objects and apply it to administrative legislation and decision-making. Blockchain has the technical characteristics of transparency and openness and cannot be tampered with, which can be used to significantly improve the accuracy and efficiency when applied in identity authentication, taxation, real estate registration, financial regulation and other fields. In governance, we should adhere to the bottom line of rule of law, protect “human dignity”, highlight “human value”, and meet the demands of individual social interests at various levels. In automated administrative examination and approval, manual processing channels should be retained to help those unfamiliar with digital technology deal with special conditions. Respecting the needs of information vulnerable groups is an important embodiment of human rights protection in administrative law enforcement.

(2) From strict investigations of violations of the law to inclusive governance

The characteristics of rapid updates and changes and uncertain development direction in the digital age require that administrative acts should have higher autonomy and flexibility. If a one-way and direct law enforcement approach is adopted, it will inevitably be difficult to comply with the development of the digital age. Contents of human rights in the digital age are being constantly expanded, such as the right to personal information, the right of informed consent, and the rights of data collection, modification and use, and the right to be forgotten. The emergence of these rights requires administrative organs to not only protect the victims in a timely manner when enforcing the law, but also to be tolerant of the infringers. This kind of tolerance is by no means the inaction of administrative organs, but the tolerance of administrative law enforcement on the basis of norms. Administrative law enforcement should reflect substantive justice and be legitimate and reasonable. Inclusive governance does not mean abdicating due regulatory responsibilities, but differentiating between different types of illegal activities in the digital age to prevent the one-size-fits-all approach. With the continuous development of human rights contents in the future, human rights protection will be bound to be fully reflected in the administrative law enforcement procedures.

(3) From utilitarian governance to intelligent governance

The digitization and intelligence of administrative law enforcement will inevitably lead to the compression of administrative procedures into closed code operation. “Face-to-face” objection interaction and discretion will be affected, and the restriction mechanism of program buffering will be missing, and thus “the utilitarian logic of 'solutionism' imposed by machines on people” will be formed. If the administrative organs place too much reliance on “data” so as to reduce their own responsibility when making administrative law enforcement decisions, algorithm misuse and technical power expansion will easily appear. In this way, instead of putting power in the "data cage", the public will be locked in the “algorithm cage”. Therefore, administrative organs should enhance their openness, transparency and participation in the design, development and application demonstration in the aspects such as government platform construction, openness and sharing of data, automated decision-making and penetrating supervision. The calculation principle and purpose and core operating mechanism for the algorithmic decision-making mechanism of major administrative law enforcement procedures shall be publicized; and performance evaluations shall be carried out by a third party regularly. Furthermore, the automated process and algorithmic decision-making of major administrative law enforcement procedures should provide necessary and alternative “human options” for citizens or social users.

III. The Transformation of Administrative Law Enforcement Procedures in the Digital Age

(1) Staying committed to establishment of administrative law enforcement procedures in accordance with the law

The allocation of administrative power and operation of law enforcement logic have undergone profound changes in the digital age, which requires that the administrative law enforcement procedures in the digital age should be changed accordingly, and that the digitization of administrative law enforcement procedures should be promoted according to data information security, purpose restrictions, law enforcement quality, and least privilege and power reservation and restriction principles. (1) The regulation and protection of data information and algorithm should be strengthened. Personal Information Protection Law of the People's Republic of China and other supporting systems related to digital information security should be further improved to protect information security. Meanwhile, fairness and transparency in algorithm design and operation should be ensured by giving the reasons, listening to opinions and eliminating bias. (2) The administrative acts shall be lawful in procedures, and compliant in acts and results. Meanwhile, digital administrative law enforcement correction mechanisms should also be established to provide effective relief and compensation means for protecting citizens' legitimate rights and interests. (3) Administrative organs should avoid the abuse of power in the process of law enforcement and the infringement upon citizens' legitimate rights, and should adhere to principle of least privilege, i.e., the embodiment of the principle of proportionality in the field of power. For instance, when the government organs need to collect residents' relevant information due to the digitization of tax enforcement, they should follow the principle of least privilege and only collect basic information such as salaries and employment, but should not collect information such as religions and blood types.

(2) Staying committed to openness and transparency of digitized administrative law enforcement procedures

Administrative acts of government in the digital age have gotten rid of the “physical model” of traditional administrative acts, which can realize the improvement of the efficiency of national and social governance through effective data collection, analysis and processing and algorithm modeling. Therefore, it is required to optimize the process and method of government governance through empowerment and reengineering, and form the technical due process that is quick, precise, intelligent, efficient, and jointly built and shared. This not only poses challenges to the rational principle of administrative openness, discretion and legal responsibility, but also provides a rare opportunity for the institutional innovation of digital administration. Therefore, transformation and rebuilding should be carried out according to the requirements of the digital age and the logic of digital rule of law.

Administrative actions of government in the digital age should be open and transparent. A platform-based, digitized, and automated digital administration method is used for digital government. Based on technology, it not only shows the existing administrative, governance logic and rule of law logics, but also contains scientific computational and information logics, which significantly increases the complexity, gambling and risk of the digital administration process. Meanwhile, the technology outsourcing in the construction of digital government also leads to a relative closed loop.

(3) Establishment of an efficient and all-round supervision system

To realize the protection of human rights in administrative law, it is required not only to rely on the self-awareness of the government and its working personnel, but also to establish an efficient and all-round supervision system. In the digital age, it is even more necessary to strengthen the supervision of power and those who wield it. The development of big data supervision technology should be improved and artificial intelligence, algorithm assistance and other means should be used to automatically track, investigate and determine related acts of administrative law enforcement, especially network law enforcement, so as to avoid illegal acts from the source, ensure that the government's administrative power is effectively regulated, and ultimately ensure that the government can administer according to law and ensure the fairness of administrative law enforcement. Digital government construction includes decision-making and online participation, and digital supervision by citizens. Different from traditional supervision methods such as social, media and public supervision in the past, digital supervision involves the participation of “whole time and space” in scope and relies on digital media in approach. It should be said that this kind of digital supervision falls into the category of the folk data mining, digital expression, right claim and the cry of justice, demonstrating the basic literacy and supervision ability of citizens in the digital age. Strengthening the digital supervision system is not only an inevitable requirement for protecting the rights of citizens in the digital age, but also an important indicator for building a law-based digital government.

IV. Conclusion

In the digital age, it is required that administrative organs should respond actively to meet the new requirements and expectations of the people. The central government has proposed to “comprehensively build a law-based digital government”, which has pointed out the direction for the transformation and upgrading of the law-based government in the digital age. In the field of administrative law enforcement, in the face of administrative law enforcement acts involving conflicts with human rights protection, possible risks shall be investigated and determined in time, and digital administrative law enforcement procedures shall be set up by using the thinking mode ruled by law, so as to fully realize the protection of human rights by administrative law enforcement in the digital age.

(The author is associate professor of School of Politics and Law of Northeast Normal University, head of Department of Law, master's supervisor, Ph.D. from Jilin University, postdoctoral fellow of Northeast Normal University. Research Direction: Human Rights Law.)