Research On Personal Data Protection In Investigation Procedures

With the progress of data technology,criminal crimes gradually shift from physical space to network space,from contact crime to non-contact crime.Before the continuous evolution of criminal behavior,the collection,analysis and use of personal data related to the case has become a key factor for the investigation authorities to improve the effectiveness of combating crime.However,while undertaking the functions of combating crime,safeguarding national security and social stability,the investigation organs fail to pay enough attention to the protection of citizens’ personal data in the investigation procedure.The introduction and application of the Personal Information Protection Law of the People’s Republic of China in2021 has pushed the research on the protection of citizens’ personal data to a new climax,and has also aroused scholars’ attention to the protection of personal data in investigation procedures.Protecting personal data in investigation procedures is to balance the dynamic balance between fighting crime and protecting human rights in the data era,prevent the arbitrary expansion and abuse of investigation power,and protect citizens’ legitimate rights and interests based on personal data.Personal data protection has become a problem that investigation procedures must face and need to solve in the new era.This paper takes the protection of personal data in investigation procedures as the research object,based on the theoretical basis of personal data protection at the present stage,guided by the prominent problems existing in the protection of personal data in investigation procedures,combined with the relevant experience of the protection of personal data in investigation procedures of foreign countries(regions),and tries to solve the problems existing in the protection of personal data in investigation procedures in China as far as possible.To optimize and perfect the personal data protection system in China,in order to ensure the realization of the investigation purpose,and at the same time,improve the intensity and intensity of personal data protection.In addition to the introduction and conclusion,the article consists of five chapters.Chapter 1: Overview of Personal Data Protection in Investigative ProceduresThis chapter mainly includes the concept and definition of personal data,ownership disputes and analysis,the processing technology and characteristics of personal data of investigation organs,and the necessity and limit of personal data protection in investigation procedures.In the part of the concept and definition of "personal data",based on the origin and evolution of the concept of "data",and through the discrimination of "personal data" and "personal information","personal privacy" and other similar concepts,clarify the reason for choosing "personal data",frame the research object of this paper.In the part of ownership disputes and analysis of personal data,through the analysis of ownership disputes of existing personal data,it is clear that personal data in the investigation procedure carries both personality interests and property interests,and personal data is mainly protected based on personality interests.In this process,the main adjustment is the relationship between the investigation organ and criminal suspects and other data subjects.In the part of personal data processing technology and characteristics of investigation organs,the paper combs the personal data processing technology commonly used in investigation practice,understands its possible impact on personal data,and summarizes the characteristics of personal data processing such as not necessarily informed and multi-subject participation.In addition,this chapter also expounds the necessity and protection limits of personal data protection in investigation procedures,in order to demonstrate the urgent need for protection of personal data in investigation procedures.Chapter 2: Theoretical Foundations of Personal Data Protection in Investigative ProceduresAt the level of macro theory,scenario theory and risk theory are used as the overall and guiding theoretical basis for personal data protection in investigation procedures.The scenario theory regards the personal data processing activities of investigation agencies as one scenario,and different personal data processing behaviors constitute different scenarios.It provides new ideas for personal data protection with "specific scenarios,specific analysis,accurate identification and dynamic protection" as the core.From the perspective of the evaluation of personal data processing,the risk theory determines the risk level of personal data according to the complexity of personal data,the legitimacy and rationality of the processing behavior,and implements the protection of personal data between leniency and strictness.At the specific micro-level,this paper discusses the basis of data subject’s rights protection and the basis of investigation organs’ personal data protection obligations.At the basic level of data subject rights protection,by combing the evolution and development of privacy protection theory,general personality right protection theory and personal data right protection theory,the adaptability of each theoretical basis and investigation procedure is further analyzed.At the basic level of personal data protection obligations undertaken by investigative organs,the theory of "basic rights-state protection obligations" and "investigative power-investigative organs protection obligations" makes it clear that investigative organs should undertake personal data protection obligations that match the rights of data subjects.Chapter 3: Examination of Typical Models of Personal Data Protection in Investigative ProceduresThe independent protection mode of personal data in the EU and the dependent protection mode of personal data in the United States are two typical modes of personal data protection in investigation procedures.The independent protection mode of personal data in the EU is represented by the introduction of personal data protection provisions independently applicable to the field of criminal justice.In the form of special legislation,it covers in detail the rights enjoyed by the data subject in the investigation procedure,the matters that the investigation organs should pay attention to when processing personal data and the obligations they should undertake.The personal data attachment protection mode in the United States is manifested as a personal data protection legislation system supplemented by decentralized legislation and case law,which clarifies and expands the connotation and extension of privacy through judicial precedents to protect personal data in investigation procedures.At the same time,the United States has focused on the protection of rights and procedural regulations for cross-border personal data processing.This chapter provides an international perspective and experience for the construction and optimization of the personal data protection system in China’s investigation procedures through the investigation of the typical model of personal data protection.Chapter 4: Current Status,Problems,and Causes of Personal Data Protection in China’s Investigative ProceduresThis chapter analyzes the current situation of personal data protection in investigation procedures,including three parts: the history of legal regulations,data rights protection of litigant participants in the investigation procedure,the personal data protection obligations of investigation organs,and the procedural regulation methods of personal data processing behaviors of investigation organs.On the basis of the current situation,this paper reviews the problems of personal data protection in investigation procedures from the overall level of system construction,and further analyzes the problems existing in the three protection paths.In the aspect of the right protection path,there are some problems such as the predisposition obstacle,the rationality of the right configuration,the poor adaptation of existing rights,and the application deviation of the right protection way in specific scenarios.In terms of the personal data protection obligations undertaken by investigation organs,there are some problems,such as the neglect of the obligation,the one-sidedness of the confidentiality obligation,the limitation of the privacy protection obligation and the unimplemented impact assessment obligation.In the aspect of procedural regulation,there are some problems,such as the dependence of treatment behavior squeezing the space of "procedural protection",the weakness of supervision and restriction procedures,and the vacancy of procedural sanctions.In addition,this chapter also discusses the causes of insufficient personal data protection in investigation procedures,including the weak awareness of personal data protection of relevant personnel,the imbalance in the selection of value levels of personal data protection,and the lack and sketchy legislative provisions.Only by exploring the fundamental causes behind the problems can we effectively promote the perfection of legislation and solve the problems existing in practice.Chapter 5: Regulation Paths for Personal Data Protection in China’s Investigative ProceduresClassification of personal data in investigation procedures is helpful to achieve effective protection of personal data,and for protection,the principle of disclosure of personal data processing is compatible with the principle of secrecy of investigation,appropriate confidentiality,appropriate disclosure,and the realization of the dual purpose of criminal protection.This chapter puts forward the optimization path of the personal data protection system from three aspects: Construction of the rights system of the litigant participants in the proceedings in the investigation procedure,the implementation of the investigation agency’s personal data protection obligations and the standardization of the investigation agency’s personal data processing procedures.In the construction of the right protection system,based on the right of "personal data protection right-privacy",the progressive personal data protection right system is built;Adaptation of existing personal data rights that are not fully applicable;The remedy right of absence should be perfected.In the implementation of the personal data protection obligation of investigation organs,the classification of personal data of "general personal data-private personal data" is taken as the standard,and the "gradient" protection obligation mode of investigation organs is established.Clarify the specific subject who undertakes the protection obligation;To construct a "hierarchical" punishment mechanism for ineffective performance of protection obligations by investigation organs.In terms of the improvement of personal data processing procedures in investigation procedures,the legal attributes of retrieval behavior,online extraction,and remote inspection behavior on the network should be clarified,and the legal attributes of "compulsory investigation behavior-arbitrary investigation behavior" should be established as the distinguishing standard for personal data forensics procedures.Establish independent regulatory procedures for personal data analysis,including approval,supervision and relief procedures;Improve the storage and custody mechanism of personal data,set the storage period of personal data proportionally,introduce blockchain technology and privacy computing technology to ensure the storage and custody security of personal data,and establish a special periodic review mechanism to ensure the necessity of personal data storage.