Research On Jurisdictional Coordination Of Cross-Border Access To Criminal Electronic Data

In the cross-border retrieval of electronic data in the criminal field,the conflict of jurisdiction is mainly manifested at the level of legislative jurisdiction and law enforcement jurisdiction.Based on the basis of network sovereignty and security,China advocates territorial jurisdiction over electronic data at the level of legislative jurisdiction,prohibiting domestic data controllers from assisting foreign countries to retrieve data without consent,resulting in law enforcement jurisdiction only being able to retrieve foreign electronic data based on the judicial assistance route.In order to improve the efficiency of law enforcement,the law has given the function of network remote investigation to extract data,using the form of network investigation to retrieve foreign electronic data,which is neither in line with the restrictions of international law on law enforcement jurisdiction strictly adhering to the principle of territoriality,nor in line with the requirements of China’s Criminal Procedure Law.In a comparative law study of US and EU law,the Cloud Act introduced in the US asserts personal jurisdiction over domestic service providers and expands legislative jurisdiction over extraterritorial criminal electronic data,while allowing offshore service providers to disclose data on reasonable grounds,but the shortcoming is that the Act requires that only qualified foreign governments can access data in the US in the context of law enforcement cooperation,increasing the law with developing countries Conflicts.The EU bases its legislative jurisdiction on the provision of actual services between member states,allowing direct access to electronic data between member states.Countries outside the EU still rely on the international criminal MLA route at the law enforcement level,and the MLA process is expedited by the promotion of "direct disclosure of electronic data through the entry into force of a Contracting Party Directive".The European and American approaches are characterised by a certain degree of cession of legislative jurisdiction,abandoning territorial jurisdiction over electronic data at the legislative level in an attempt to break away from the traditional territorial concept of sovereignty,while both Europe and the United States adhere strictly to the territorial limits of law enforcement jurisdiction,at best adapting the act of mutual legal assistance.The basis of legislative jurisdiction and law enforcement jurisdiction is national sovereignty.By studying and interpreting the practices of China and Europe and the United States,we can find that the conflict of jurisdiction in criminal electronic data access is behind the different understanding of data sovereignty.Data sovereignty is characterized as an interdependent sovereignty,and if the traditional concept of sovereignty is applied with the territorial limit,the exercise of data sovereignty will be greatly hindered,for example,it is difficult for China to effectively retrieve electronic data from outside the country.The procedure list view of sovereignty is behind the construction of multilateral rules at the level of enforcement jurisdiction.Although the EU has succeeded in successfully establishing such multilateral rules among its member states,the construction of multilateral rules is currently unclear given the differences in national policy considerations,so it is more practical to solve the problem from the perspective of legislative jurisdiction.The solution to the conflict of legislative jurisdiction is to first reach a consensus between states on the interdependence of data sovereignty,then justify the possibility of ceding legislative jurisdiction through international comity,and allow the application of extraterritorial laws in the country after a comity division.The principle of international comity is directed in particular at the public law acts and sovereign interests of a State.International comity also has a binding effect on comity in public law.The essence of a conflict of legislative jurisdiction is a conflict between the application of national law and foreign law.International comity can clarify the grounds for the cession of legislative jurisdiction and establish rules for the choice of conflicting laws between the two countries,and the outcome of the comity analysis can determine whether to allow the application of foreign law in the country.The application of the principle of international comity requires the existence of a minimum connection between the law of a State and the act to be regulated,and confirmation of the existence of the minimum connection relies on both subjective and objective perspectives.As the application of comity involves a comparison of the interests of two countries,it is subject to a careful analysis of seven elements of comity:the importance of the data in the investigation,whether the data is specific and unambiguous,the place of origin of the data,alternative means of obtaining the data,the national interest in the conflict,the difficulty of the relevant party complying with the national law,and whether the subject of the application is acting in good faith.At the level of domestic law,China can appropriately expand its legislative jurisdiction by establishing a personal jurisdictional connection point over its own service providers abroad,making our laws on electronic data retrieval in the criminal field have extraterritorial effect.At the same time,it is clear that electronic data requested by foreign countries should not be important data under our regulations if it is the transaction records of the suspect,so as to avoid conflicts with our data exit legal norms.China also needs to strictly adhere to the principle of territoriality in its law enforcement jurisdiction and restrict the practice of extracting foreign data by remote survey,making it clear that it only has the function of determining the location of electronic data storage,while online extraction can only apply to electronic data that is publicly available abroad.At the same time,in order to expedite MLA,direct contact between law enforcement agencies can be established through police cooperation,reducing the number of departments for MLA approval.The type of electronic data requested for retrieval,the date of storage,and the location of storage should be made clear in the MLA letter so that foreign countries do not turn back the request for electronic data with an overly broad scope.