Research On Non-content Electronic Data Surveillance And Protection Of Fundamental Rights

With the coming of the Age of Big Data,non-content electronic data surveillance has become the most effective tools for the investigative organization.Non-content electronic data surveillance not only interferes with the citizen’s fundamental rights but also interferes with the communication service providers’ fundamental rights.In order to prevent the investigative organization from arbitrarily interfering with the fundamental rights guaranteed by the constitution,the United States,Germany and China regulate the non-content electronic data surveillance.However,the academic community universally believes that the existing regulation is not sufficient to protect the fundamental rights from the investigative organization.How to regulate the non-content electronic data surveillance to balance the needs of criminal investigation and the protection of fundamental rights is still an urgent problem.Based on the above background,this paper puts forward the research on non-content electronic data surveillance and protection of fundamental rights.This paper points out that non-content electronic data surveillance will cause intervention to the fundamental rights and interests of citizens and communication service providers.Comparing the United States,Germany and Taiwan’s the non-content electronic data surveillance regulations,and analyzing their similarities and differences.And then,based on the problems in China’s existing regulation,this paper puts forward the reform proposals to better balance the needs of criminal investigation and the protection of fundamental rights.This article can be divided into four parts.The first part is an overview of non-content electronic data surveillance.This part defines the concept of the non-content electronic data and the non-content electronic data surveillance,outlines the surveillance’s characteristics,and analyzes its classification and function in the criminal investigation.The second part is the research on the intervention of non-content electronic data surveillance to fundamental rights.For citizens,the constitution of different countries and regions guarantees different fundamental rights.Therefore,non-content electronic data surveillance can interfere with different fundamental rights.In the United States,it interferes with privacy.In Germany,it interferes with right to information self-determination and IT right.In Taiwan,it interferes with communication freedom,privacy,personal information freedom and general act freedom.It also interferes with other fundamental rights such as the freedom of religious,the right to freedom of association and assembly,the right to freedom of movement,and so on.For the communication service providers,non-content electronic data surveillance generates behavioral assistance obligation and equipment setting obligation which will interfere with their freedom of business and property right.In order to prevent the investigation organization from abusing the power,it is necessary to regulate non-content electronic data surveillance to balance the criminal investigation needs and the fundamental rights protection.The third part is the comparative study of non-content electronic data surveillance regulation.In the United States,the Congress passed the Pen Register Act,the Stored Communication Act and Federal Rules of Criminal Procedure for the United States District Courts to regulate investigation organization obtaining instant and stored communication record,mobile phone base station positioning surveillance and GPS positioning surveillance.In German,the amended Criminal Procedure Law regulates communication records surveillance,using technology to investigate mobile communication equipment,and requiring communication service providers to provide personal information.In Taiwan,Communication Security and Surveillance Act increases the provision to regulate the surveilling communication record and the communication user information.All the above regulations have the intention of controlling power of the investigation organization,and all follow the legal reservation principle and the doctrine of prior judicial review.However,there are differences in the form,scope,object of application,judicial review standard,prior surveillance right and the specific regulation of different types of non-content electronic data surveillance.The fourth part is the reflection and reform of China’s non-content electronic data surveillance regulation.For the first time,a new rule provides for the requirements and procedures of non-content electronic data surveillance.But the regulation exists the following problems: legal hierarchy is low;time limit of the concept of "electronic data" is not in conformity with the law and the criminal judicial practice;regulation of different types of non-content electronic data surveillance is not distinguished;investigation organization could surveil data in preliminary investigation stage;and technical requirements are missing.By studying the regulations of the United States,Germany and Taiwan,and combining with the current situation and existing problems of our non-content electronic data surveillance regulation,this part will put forward the reform proposal of our regulation.For example: following the legal reservation principle and the proportion principle;setting different levels of regulation threshold for different types of non-content electronic data surveillance according to different degree of intervention;introduce properly the doctrine of prior judicial review;surveilling data in preliminary investigation stage should follow the felony principle;and adding procedural and technical requirements.