Research On Regulation Of Big-data Criminal Investigation

With the rapid development of science and technology,big data technology has penetrated into various fields of society and attracted wide attention from all countries in the world.As another technological revolution in human history,big data has immeasurable potential value and application prospects.In the field of criminal justice,big data technology has been applied to investigation practice,which plays a vital role in innovation of investigation technology,transformation of investigation thinking and innovation of investigation mode.How to effectively regulate the exercise of this technical power and ensure the non-infringement of citizens’ basic rights in the process of big-data criminal investigation is still a frontier issue in this field.It is also a key issue.A series of new legal issues triggered by big-data criminal investigation not only pose challenges to the traditional investigation system,but also involve the evidence system and the reform and improvement of the entire criminal procedure rule of law.The research on regulation of big-data criminal investigation is not only conducive to the innovative development of traditional investigation theory in China,but also has the practical significance of guiding investigation practice,and the research value is significant.This article takes the rule of law as the basic observation angle,and considers the related problems caused by big-data criminal investigation.The text is divided into five chapters:The first chapter is "The basic situation of big-data criminal investigation",which mainly introduces the basic contents of big-data criminal investigation,and analyzes the practical value of big-data criminal investigation.The big data is not only a new resource,but also a new technology,idea,and model.Big Data has "4V" Features of large volumes(volume),multiple varieties(variety),fast velocity(velocity),and high value(value).It is based on these advantages that big data has been highly concerned by all countries in the world and quickly applied to all areas of society.Criminal Investigation is one of the important aspects.With the introduction of big data technology,China’s traditional investigation system is undergoing unprecedented changes and transforming into a positive,active,scientific and intelligent direction.This change is not only reflected in the level of investigation practice,it is also reflected in the academic innovation of investigation,and the proprietary concept of"big-data criminal investigation" was born.This paper believes that "big-data criminal investigation" should be understood in a broad sense,which refers to the behavior of legal investigation organs against crimes that have occurred or have not yet occurred but have a high risk of crime through the comprehensive use of big data technology in order to achieve the relevant investigation behavior of finding out the truth of the case,arresting suspects,predicting and preventing and controlling criminal acts;at the same time,it is not limited to technical behavior,it also includes the comprehensive application of the thinking concept of big data in the transformation of investigation mode,the cultivation of investigation talents,and the innovation of investigation mechanism.It is a system concept with multi-dimensional hierarchy.It has the extension features of "data-driven","artificial intelligence" and "full-time correlation".At present,big-data criminal investigation mainly stays at the technical level,mainly including data search method,data collision method,data mining method and data portrait method.Big-data criminal investigation is becoming more and more mature in technical application.Its extensive application in practice is not only conducive to the innovation and development of traditional investigation system,but also conducive to the continuous deepening of high-tech intelligence and energy in the investigation field,which has important practical value.The second chapter is "The necessity of regulation of big-data criminal investigation",which mainly focuses on the proper basis of big-data criminal investigation,the basic definition of regulation of big-data criminal investigation and the realistic cause.Among them,the legitimate basis of big-data criminal investigation is mainly demonstrated around the practical necessity and theoretical legitimacy.In the context of the era of big data,a series of emerging crime forms represented by cyber crime continue to dissimilate,and the improvement of technicality and concealment leads to increased difficulty in investigation.However,due to the restriction of thinking,the traditional investigation mode lags behind the upgrading of criminal means,and the pressure of investigation to solve cases is increasing.At the same time,along with social development and progress,citizens’ demand for stability and order,crime prevention and control is constantly increasing,and the social governance model is moving toward modernization.In the process of social modernization,the contact between countries and regions has become increasingly close,and international criminal justice cooperation has become an inevitable trend to fight crimes and maintain social stability and order.Therefore,from a practical perspective,it is necessary for big data to be used in the practice of investigation.From a theoretical point of view,big-data criminal investigation has the substantive justice theory,the theory of procedural justice and judicial efficiency theory and national policy support,it is the objective of criminal prevention and control,the objective demand of the human rights protection,it is necessary guarantee of judicial efficiency,is the embodiment of national strategy,therefore also has the legitimacy of law.On the basis of necessity and legal legitimacy,we should further clarify the basic connotation and important significance of the regulation of big-data criminal investigation.The regulation of big-data criminal investigation refers to the regulation of big-data criminal investigation technology,activities and procedures,and is the premise to ensure the release of positive efficiency of big-data criminal investigation.Big-data criminal investigation,as a new technology of investigation,investigation activities,their patterns,exist in the process of data resources utilization in infringement of rights of high risk,and in the aspect of legal regulation exists blind area,whether out of suppressor "power" or "stabilizer" of right of real demand,promote the big-data criminal investigation under the rule of law is urgent and necessary.The third chapter is "The basic elements of regulation of big-data criminal investigation",which is mainly mainly summarizes and refines the basic elements of regulation of big-data criminal investigation from three aspects:right guarantee,power balance and benefit measurement.First of all,as for the elements of right protection,big-data criminal investigation should adhere to the legal basis of people-oriented and presumption of innocence,pay special attention to the basic rights such as the right to know,the right to privacy and the right to personal information of the prosecuted and other individuals with relevant rights,and accept supervision and restriction through "relative openness".Secondly,in the element of power balance,there are three specific requirements:reasonable and moderate use of investigation measures,the prudent launch of investigation procedures,the restraint and sanction of investigation power.Reasonable and moderate use of investigation measures" requires earnest implementation of the principle of proportion,in line with the appropriateness,necessity and balance of carrying out big-data criminal investigation.The "prudent launch of investigation procedure" is embodied in the restraint and control effect of judicial review system on the exercise of investigation power."Restraint and sanction of investigation power" requires procedural sanctions on illegal behaviors in the process of big-data criminal investigation,providing judicial relief and forming post-binding force.Finally,in the element of benefit measurement,it is required to give full play to the role of benefit measurement theory in the process of big-data criminal investigation,and find the interest balance between the demand for protection of private rights represented by the right to personal information and the expansion trend of investigative power represented by the technology drive.In this process,we should pay special attention to the principle of technical neutrality and case-specific discretion mode.In addition,the high and new technology represented by big data has impacted the binary relationship of"rights-power" in traditional investigation,and gradually changed to the tripartite structure of "rights-technology-power".On the premise of technology neutrality,we should also pay attention to the relationship between principle and exception,general and special,and comprehensively weigh the power,right,effect,efficiency,technology,rules and other basic elements of rule of law in the big-data criminal investigation through the discretion of individual cases.The fourth chapter is "The practical dilemma of regulation of big-data criminal investigation",which mainly abstractly summarizes the "triple legal dilemma" in the legalization process of big-data criminal investigation procedure,which is the legal norm dilemma,litigation practice dilemma and social support dilemma.Firstly,at the level of legal norms,the current legal system shows serious lag,vague definition of the attributes of big-data criminal investigation measures,unclear starting conditions of big-data criminal investigation procedures,lack of unified judgment standards for big-data criminal investigation and case handling,and serious lack of algorithm regulation of big-data criminal investigation technology.The problem of fuzzy attribute definition is the intersection of big-data criminal investigation and technical investigation and investigation technology,which is a special investigation technology with close crossover relationship with technical investigation.The problem of unclear start-up conditions is highlighted by the impact of predictive investigation on the traditional case-filing procedure and the practice of criminal preliminary investigation in practice needs to be regulated and improved by law.The problem of differentiation of judgment standards is that the correlation emphasized by big data challenges the traditional causal relationship,and then affects the coordination and unification of subjective and objective standards in investigation and handling cases.The problem of lack of algorithm regulation is mainly embodied in algorithm black box and algorithm discrimination,which seriously affects the realization of due process.Secondly,at the level of litigation practice,big-data criminal investigation mainly faces practical difficulties such as difficulty in applying evidence,difficulty in effective defense,difficulty in legal supervision and difficulty in international cooperation.It is difficult to apply evidence,mainly reflected in the complex relationship between big-data criminal investigation and evidence collection and the definition of evidence type,and how to identify the evidence materials of big-data criminal investigation through objective authenticity,relevance and legitimacy,and prevent the emergence of alienated forms such as evidence transformation.It is difficult to defend effectively,mainly because in the process of big-data criminal investigation,defense lawyers are faced with numerous obstacles to intervene in the process.In addition,there are significant differences between the prosecution and defense in terms of data acquisition ability and data analysis ability,which may aggravate the unequal state of prosecution and defense.The difficulty of legal supervision is mainly reflected in the prominent formalization of internal self-discipline and external heteronomy,and the weak legal regulation.Due to such factors as unclear legal authorization,insufficient rigidity of procuratorial supervision and unsound judicial review system,there is a lack of strong supervision and restriction on big-data criminal investigation.International cooperation is not smooth,because different countries and regions increasingly emphasize "data sovereignty" and "data security",which is in contradiction with the "data sharing" required by international investigation cooperation.Finally,at the level of social checks and balances,there are at least three practical problems in big data detection.First,due to the "fear of the unknown" and the widespread concern of the "big surveillance society",there is a panic of personal privacy at the cognitive level,shaking the public foundation of the rule of law in big-data criminal investigation.Second,big data companies,on the one hand,add"digital barriers" for their own commercial interests,and on the other hand,share data for investigation cooperation obligations,which leads to difficulties between investigation authorities and individual citizens of society,and hidden worries about irregular data management.Third,due to the strong technical and secret color of big-data criminal investigation,it is difficult to conduct reasonable and effective information disclosure,and public opinion supervision from the society is limited.The fifth chapter is "The exploration on the path of regulation of big-data criminal investigation",which mainly probes into the "multi-dimensional path”of regulation of big-data criminal investigation from the dimensions of legal norms,litigation practice and social checks and balances,in order to overcome the aforementioned three dilemmas and ensure the orderly and lawful conduct of big-data criminal investigation.Firstly,at the level of legal norms,it is necessary to clarify the basic principles that big-data criminal investigation should foIlow.The basic principles of big-data criminal investigation include not only general principles represented by"procedural legal principle","presumption of innocence principle","proportion principle" and "judicial review principle",but also special principles represented by"notification-informed principle","collection limitation principle" and "relative disclosure principle".In terms of applicable conditions,it clarifies the power subject status of public security organs above the municipal level,distinguishes different types of cases applicable to big-data criminal investigation,normalizes the approval process and requires written records of "data flow".In terms of case handling standards,case backtracking investigation and overall prediction investigation are refined and standardized respectively.In the aspect of algorithm regulation,the transparency and accountability of big data algorithms are improved by "adding rules of-algorithm interpretation" and "establishing algorithm accountability mechanism".Secondly,based on the dimension of litigation practice,it mainly involves the requirements of evidence collection framework of big-data criminal investigation,criminal defense mode,supervision and review mechanism,international judicial cooperation and other relevant judicial procedures.In the litigation practice,it is necessary to set up the big-data criminal investigation thinking mode as soon as possible,train the big-data criminal investigation professional talents,and improve the big-data criminal investigation application platform,so as to build a set of standardized investigation and evidence collection framework.In addition to learning to use "authentication rules" to conduct "data cross-examination",defense lawyers should also actively defend in the pre-trial stage,so as to optimize the whole-course criminal defense mode.The procuratorial organ and the judicial organ should give play to the function of dynamic supervision and static examination respectively,and strengthen the covering supervision and examination mechanism.In terms of international judicial cooperation,based on the perspective of criminal judicial assistance,we should actively carry out big-data criminal investigation cooperation based on sharing,gradually define common standards for personal information data protection,realize sharing and co-governance on the premise of"data sovereignty",and promote the formulation of the Convention on International Cooperation on Big-data Criminal Investigation.Finally,at the level of social supervision and checks and balances,it is necessary to shape citizens’ concept of personal data rights to lay the foundation of a law-based society,promote a reasonable balance between data companies’ duty to protect and their duty to assist,and improve the supervision mechanism of public opinion to ensure sufficient external checks and balances.The realization of the legalization of big-data criminal investigation procedure needs the social environment with strong legal atmosphere as the support.The public should gradually establish a new concept of data rights,including the concept of data ownership,the concept of data disclosure,and the concept of data self-determination.Big data companies should assume more social responsibilities,strengthen data management standards,and earnestly fulfill data protection responsibilities and data inspection obligations.In terms of supervision by public opinion,it is necessary to mobilize and regulate the supervision role of emerging "we media" while exerting the supervision function of traditional media,so as to promote the standardization and rule of law of big-data criminal investigation.