Research On Legal Regulation Of Electronic Data Search

This paper considers electronic data search to be the research object,employs comprehensive legal explanation,empirical research,and comparative research methods,considers the challenge posed by electronic data to the traditional search system as the logical starting point,considers the intervention of basic rights as the theoretical basis,considers the definition of basic rights in electronic data search and the mode division of electronic data search as the basic approach,and This paper’s research objective can be divided into three levels: first,analyze the characteristics of electronic data that differ from traditional physical evidence and the challenge to the traditional search system.Second,construct the necessary theoretical foundation for electronic data search regulation,including defining the appropriate basis and mode division of electronic data search.Third,the current electronic data search system should be reconsidered and rebuilt,as well as special procedural rules tailored to electronic data search.In contrast to traditional physical evidence,electronic data has the characteristics of invisibility,technicality,magnanimity,and virtual space.The following characteristics contribute to the quandary of electronic data’s application to traditional search systems: invisibility of electronic data contributes to the quandary of electronic data’s application to traditional search objects;technicality of electronic data contributes to the quandary of electronic data’s application to traditional search behavior and authentication method;virtual space of electronic data contributes to the quandary of electronic data’s application to traditional search system.The benchmark for defining the nature of investigation behavior in major countries governed by law outside the country has evolved from "physical invasion" to "infringement of basic rights," and the basic rights guaranteed in investigation behavior have also evolved from "personal and property rights" to "data rights." The theory of basic rights intervention uses a three-stage logical framework to explain the restriction of basic rights: "the scope of basic rights protection-the intervention of basic rights-the justification of basic rights intervention." In the case of electronic data search,the basic right should be defined as the right to privacy,and the criterion of privacy infringement should refer to the theory of "reasonable expectation of privacy." The violation of the right to privacy of electronic data must be justified by legal reservation and the proportionality principle.Based on the different rights of electronic data search regulation,electronic data search can be divided into two modes: direct search and indirect search.The direct search mode regulates electronic data search based on data privacy.The search’s goal is to collect and extract electronic data related to the facts of the case,and the search’s object is the electronic data itself.The search behaves in a "two-step" manner(possibility)search-(possibility)seizure-(relevance)search-(relevance)seizure.The subject of search encompasses both the direct compulsory search subject and the indirect compulsory search subject.The indirect search mode governs the search of electronic data based on property rights.It has the same search purpose as direct search,but because it does not recognize the privacy right of electronic data,it can only be searched by electronic data storage carrier.Its behavior is "one-step" search-seizure(possible).The investigation organ is the main body of the search.The relationship between direct search and indirect search mode is not strictly either-or,but indirect search can be "embedded" in the process of direct search,and the seizure of an electronic data storage carrier in indirect search mode can be used as the direct search preservation stage.Direct search,as opposed to indirect search,regulates electronic data search based on the right to privacy carried by electronic data itself,which can provide independent protection and relief for the right to privacy.Simultaneously,the establishment of direct search mode can solve the application dilemma of traditional search system in search object,search subject,and search behavior caused by electronic data characteristics.As a result,China should reflect on and reconstruct its current electronic data search system in order to establish the direct search mode.The current Chinese electronic data search system uses an indirect search mode,which does not recognize the privacy right of electronic data itself.As a result,the following issues exist in current legislation and practice: First,electronic data search legislation is lax.Because the right to privacy carried by electronic data is not recognized,the Criminal Procedure Law does not specify that direct search can be used to collect and extract electronic data.Because the storage carrier is used as the object in indirect search,the traditional search system can be used.However,the traditional search system’s legislative provisions have some rough problems,such as vague search warrant application conditions,unclear search without warrant application conditions,and rough search execution procedures.Second,the indirect search operation is not in the correct order.The generalization of electronic data forensics,combined with legislative flaws in the traditional search system,results in the generalization of carrier seizure and a low threshold for carrier seizure in practice.The former demonstrates that the reason and necessity of carrier seizure are not substantively examined,and the possibility of electronic data in the carrier replaces the carrier relevance judgment.The latter demonstrates that because of its mass and invisibility,electronic data cannot be searched at the crime scene,and the carrier can only be detained based on the possibility of evidence in the storage carrier.The "relevance" of physical evidence to the facts of the case is the reason why China’s traditional search system retains it.The seizure based on "possibility" obviously lowers the storage carrier seizure threshold.At the same time,because of the "evasion and substitution" problem in China’s traditional search system,this problem is exacerbated in the carrier seizure.The third factor is the increase in the number of invisible searches.Because our country’s Criminal Procedure Law does not specify the applicable investigation behaviors of collecting and extracting electronic data,existing evidence collection rules,such as on-site extraction,remote investigation,retrieval,inspection,and inspection and appraisal,have the problem of alienation of application to traditional investigation behaviors,that is,they have broken through the authorization of traditional investigation behaviors.Fourth,there is no remedy for the electronic data search procedure.In the process of searching for electronic data,two rights may be violated.First,consider the property rights associated with electronic data storage carriers.The goal of electronic data search is to collect and extract electronic data from the storage carrier that is relevant to the facts of the case.The obligee has the right to request the return of a storage device that was seized outside the scope of the electronic data search process.However,due to the lack of a "litigation" structure in current legislation,relief for the storage carrier’s property right is also merely a formality.Second,electronic data itself carries the right to privacy.Because the current exclusionary rule of illegal evidence in China is not applicable to electronic data,and the deviation of the theoretical basis of the rule of legality review of electronic data in China cannot provide relief for privacy violations in the process of electronic data search.The current electronic data search system in China requires legislative improvement on two levels: the Constitution and the Criminal Procedure Law.At the constitutional level,it is necessary to clarify the constitutional status of the right to electronic data privacy,and to that end,we can use the system of "constitutional interpretation" or "guiding cases" to establish constitutional data privacy protection.Simultaneously,a system of "constitutional relief" for violations of fundamental rights should be established.Allow the obligee to file a "constitutional petition" if basic rights cannot be restored after exhausting all available remedies.It is necessary to construct the regulation procedure of electronic data search at the level of Criminal Procedure Law in order to achieve the balance between tracing crimes and guaranteeing basic rights.It is embodied in the following aspects: defining electronic data as the search object,defining the applicable writs conditions and exceptions,establishing a two-stage writs system,perfecting and refining the electronic data search procedure,and perfecting the electronic data search procedural relief.It should be emphasized that,given the application dilemma of massive electronic data to the traditional authentication method,technical authentication methods such as "integrity check,trusted time stamp,digital signature,blockchain deposit certificate" should be added to the traditional authentication method.In light of the search warrant rule application dilemma caused by the virtual space of electronic data,we should establish a two-stage regulation system of the warrant,with the principle of limiting the search object and scope in the warrant to minimize the infringement of the search,and combining with the characteristics of the electronic data search behavior,we should apply the warrant in the later stage to protect the rights that were not guaranteed in the warrant.The minimum limitation should be realized in the search warrant by "plan scheme" based on the characteristics of electronic data.