Research On The Procedure Regulation Of Electronic Data Collection By Investigation Organ

Electronic data collection is an important part of the evidence system.With the development of science and technology,electronic data plays an increasingly important role in criminal proceedings.Although the legal status of electronic data has been confirmed in the criminal procedure law,the collection procedure of electronic data in criminal procedure is not perfect and needs continuous research.At present,there are obvious deficiencies in the procedures of collecting electronic data.The existing electronic data collection procedures ignore the important value of privacy interests to individuals,confuse the relationship between different electronic data collection methods,and apply the same collection procedures to electronic data with different privacy interests,resulting in improper interference in the process of collecting electronic data.At the same time,when collecting electronic data,the investigation organ should pay attention to the reliability and relevance of electronic data,which is necessary for further study.Based on the theory of electronic data collection procedure of investigation organ and the current context of electronic data collection of investigation organ in our country,this paper makes a systematic and in-depth study on the regulation of electronic data collection procedure of investigation organ in combination with the regulations of electronic data collection procedure of foreign countries and regions.In addition to the introduction and conclusion,the article consists of five chapters.The first chapter studies the basic content of the procedure regulation of the electronic data collection of the investigation organ.The procedure regulation of electronic data collection by investigation organs involves the definition of relevant concepts of electronic data,the classification of electronic data,the development of the procedure regulation of electronic data collection and the theoretical basis of regulating the behavior of electronic data collection by investigation organs.At present,there are many theories about the definition of electronic data,such as the theory of materials and derivatives,the theory of storage information,the theory of electromagnetic records and the theory of electronic forms,which have not formed a unified point of view.The definition of the right to privacy also has a variety of views,including the division of standards in a broad and narrow sense.The right to privacy should refer to the right of citizens’ personal life not to be interfered with and personalinformation not to be disposed arbitrarily,including the right to privacy of personal information and the right to privacy of residence not to be interfered with arbitrarily.Privacy interest is the external manifestation of the right to privacy,which is the interest enjoyed by individuals based on the right to privacy,including the right to expect others not to interfere in their own lives.The division based on privacy interests is of great value to the protection of privacy right in electronic data collection.Based on the privacy interests involved in electronic data,electronic data can be divided into electronic data with privacy interests and electronic data without privacy interests,According to the degree of privacy interests,electronic data with privacy interests can be divided into electronic data with core privacy interests and electronic data with non core privacy interests.The procedure of collecting electronic data should be set up with the electronic data with privacy interests as the object,and the collection of electronic data with non core privacy interests and core privacy interests should follow different procedures.The basic concepts of electronic data collection include the concept of power balance,the concept of human rights protection and the concept of procedural justice.The procedure of collecting electronic data needs to take the basic principle as the minimum standard.The principle of writ,the principle of proportion and the principle of legal reservation are the bottom line of collecting electronic data.From the perspective of the development of electronic data collection procedures,the standardization process of electronic data collection in China can be divided into three periods: the period of applying other evidence collection procedures by analogy,the period of applying relevant interpretation regulations,and the period of adopting laws and interpretation parallel regulations.The second chapter investigates the current situation of electronic data collection in China.At present,the basis of collecting electronic data is mainly normative documents such as the criminal procedure law,the provisions on the collection,extraction,examination and judgment of electronic data in handling criminal cases,and the rules for collecting electronic data in handling criminal cases by public security organs.The current situation of electronic data collection by investigation organs is mainly reflected in the following aspects: In terms of collection subjects,the electronic data collection procedure is initiated by the investigation organ and implemented by the investigators.The custodian of the electronic data has the obligation to properly keep the electronic data,and the network service providers have the obligation to assist the investigators in collecting the electronic data.In terms of collectionmethods,the ways of electronic data collection by investigation organs are diverse,including the way of search and seizure,the way of real-time interception of electronic data by technical investigation measures,and the way of remote inspection and retrieval through the network.In the aspect of the examination and approval of electronic data collection,the current examination and approval method is typical internal administrative examination and approval,which requires the approval of the person in charge of the investigation organ when the compulsory investigation means is used to collect electronic data.In the process of collecting electronic data,the existing norms also put forward requirements for the investigation organs to ensure the integrity and authenticity of electronic data,but there are still ways to preserve and fix electronic data through written materials in judicial practice.The illegal collection of electronic data by investigative organs will also be regulated by the exclusionary rule of illegal evidence.The existing norms in China include absolute exclusionary and discretionary exclusionary.There are still some problems in the procedure of collecting electronic data,which hinder the standardization of the procedure of collecting electronic data and the protection of basic rights such as personal privacy.The electronic data collection procedure pays attention to the authorization of the investigation organ,and lacks the restriction of the neutral third party to the investigation power.The procedural provisions of electronic data collection by investigation organs are not differentiated according to the strength of electronic data privacy interests,and lack of attention and protection to personal privacy interests.In the specific collection process of electronic data,there is no clear distinction between the search of electronic data and the search of electronic data storage carriers in the legal norms and judicial practice.The search of electronic data is not clear about the scope of the search,and there is a phenomenon of comprehensive search.In the aspect of the relationship between search and other means,search electronic data is confused with inquest,which leads investigators to obtain electronic data by almost unrestricted inquest;The relationship between searching electronic data and identification is not clear.After the investigation organ seizes the storage carrier,it directly starts the identification procedure,and the identification organ extracts the electronic data.The start of the identification procedure is almost unlimited.In addition,the problems of undocumented search and undocumented seizure have not been solved,and there are no clear procedural provisions on the behavior and return of the storage carrier of the seized electronic data.The main reasons for the above problems are as follows:the pursuit of substantive justice by investigative organs is stronger than the concern ofprocedural justice;the imbalance between power and rights leads to inadequate protection of personal privacy interests;the tradition of secret access to electronic data still has a legacy impact on electronic data collection procedures;As a new thing,electronic data is inevitable to encounter setbacks in the early stage of legislation;the existing legislation of electronic data collection procedure is not very operational.The third chapter designs the regulation of electronic data collection procedure with core privacy interests.Electronic data with core privacy interests,as a data type closely related to personal privacy,needs to follow strict procedures to collect such electronic data.The procedure of collecting electronic data of core privacy interests should be applied by investigators,and then reviewed by neutral judicial organs.The collection of electronic data of core privacy interests needs to be limited by the scope of application,the interception of real-time transmission of electronic data needs to be limited by the principle of felony,the network inspection of remote electronic data of core privacy interests and the collection of electronic data of core privacy interests stored in the body do not need to be limited by the principle of felony,but the scope of search needs to be limited for electronic data of search.The collection of electronic data of core privacy interests should adhere to the standard of "criminal facts,need to be investigated for criminal responsibility",and judge according to different forms of electronic data supplemented by the principle of felony,the principle of proportion and the principle of relevance.The collection of electronic data of core privacy interests should be in the charge of investigators.Internet service providers and others need to provide assistance to investigators when necessary.If it is necessary to take technical investigation measures to collect electronic data,it shall be limited by the time limit of technical investigation.If it is not necessary to take technical investigation measures to collect electronic data,it shall be limited by the period and times based on the existing investigation period.In order to collect the electronic data of core privacy interests,the investigation organ needs to distinguish the search of electronic data from the seizure of storage carrier,and avoid replacing search with inspection and identification to obtain the electronic data of core privacy interests.The electronic data of the core privacy interests collected by the investigation organ shall be used within a reasonable range and shall not be used for purposes other than the investigation of a crime.When using the translation of electronic data,we need to limit the use of translation conversion.The collection of electronic data of core privacy interests should be supervised.The collection procedure of electronic data of core privacyinterests is mainly external supervision,which needs to be supervised by criminal suspects,procuratorate and other subjects.The behavior of investigation organs in collecting electronic data of core privacy interests should be supervised in an all-round way.If the investigation organ collects the electronic data of the core privacy interests illegally,it should be regulated by the exclusionary rule of illegal evidence,and at the same time,it should give relief to the consequences.The fourth chapter designs the electronic data collection procedure of non core privacy interests.As a kind of electronic data,non core privacy interest electronic data is not as strong as core privacy interest in the level of individual privacy intervention,but it should also be collected by legal procedures.The collection of non core privacy interest electronic data should also be initiated by the investigation organ,and the collection of the investigation organ is not limited by the scope of the case.Because the electronic data collection of non core privacy interests does not interfere with the basic rights of individuals as much as the electronic data of core privacy interests,it only needs to meet the standard of "having criminal facts or suspects" in terms of applicable standards,but whether the collection process can be started still needs to be examined by the procuratorial organ.The collection of electronic data of non core privacy interests needs to be carried out by investigators,and other personnel are obliged to provide assistance.The collection of electronic data of non core privacy interests needs to comply with the provisions of the investigation period,without the limitation of time limit.At the same time,investigators shall not take technical investigation measures to collect electronic data of non core privacy interests.The collection of electronic data of non core privacy interests needs to be restricted by both internal and external supervision.Outside,the behavior of investigators in collecting electronic data of non core privacy interests should be supervised by procuratorate,criminal suspects,their defenders and stakeholders.To collect electronic data of non core privacy interests by illegal means,it is necessary to follow the discretionary exclusionary rule of illegal evidence,and the examination organ shall determine whether to exclude electronic data.At the same time,in the process of collecting electronic data,if the criminal suspect or the person who has been collected infringes,compensation shall be made.The fifth chapter studies the reliability and relevance of the electronic data collected by investigation organs.In addition to the protection of personal privacy from arbitrary interference,investigation agencies should also pay attention to the reliability and relevanceof electronic data.The reliability of electronic data collected by investigation organs is necessary to be regulated separately.The mass,invisibility and easy to be tampered of electronic data need to be regulated specially;The principle of evidence judgment also requires the reliability of electronic data at the level of entity and procedure;At present,the realization of the purpose of the criminal procedure to fight against crime needs to be based on the reliable electronic data,which requires the reliability of the electronic data.In order to achieve the reliability of electronic data,we should strictly stipulate the procedures of fixing and sealing electronic data,and take technical means and data ratio measures to ensure the reliability of electronic data.At the same time,by improving the witness system and the whole process video system,we can ensure that the electronic data collected by the investigation organ will not be changed due to the intervention of external factors,and ensure the authenticity and reliability of the electronic data.The differences between electronic data and traditional evidence in form and process of proof make the relevance review of electronic data special.The examination of the relevance of electronic data should start from the identity identity and the relevance between people and data.In identity identification,we can use technical means to identify the relevance between network identity and real identity,and we can also use traditional evidence to review the relevance.In the review of the relationship between people and data,it is necessary to review the direct relationship between criminal suspects and electronic data,as well as identify the relationship between criminal suspects and electronic data related equipment.