| The whereabouts track information is about the real-time dynamic activities of a specific natural person,and once it is known by the wrongdoers,it will bring an urgent and real threat to the personal and property safety of a specific natural person,and in order to combat and punish crimes and protect the legitimate rights and interests of citizens from damage,China clearly protected the criminal law of the whereabouts track information for the first time in 2017.The inclusion of whereabouts and trajectory information into the scope of criminal law protection is a response to the expansion of personal information protection in the Internet era and the rapid development of positioning service technology,which is of great importance.2017 "Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues of Applicable Law in Handling Criminal Cases of Infringing Citizens’ Personal Information"(hereinafter referred to as "Criminal Interpretation of Citizens’ Information")for the first time clarifies the The "whereabouts and trajectory information" belongs to personal information,and at the same time,the specific criminalization criteria for infringing on the whereabouts and trajectory information constitute the crime of infringing on personal information,which undoubtedly provides a legal basis for judicial organs to hear cases involving "whereabouts and trajectory information".The Criminal Interpretation of Personal Information in 2017 adopted a differentiated key protection mode for the “track information”,highlighting the difference between the track information and other personal information.First,track information is a kind of personal information with “activity recognition”,while other personal information is a kind of personal information with “identity recognition”;second,the conviction standard for infringing track information is obviously lower than that for infringing other personal information.Selling or providing personal track information that is used by others for a crime,or illegally obtaining,selling or providing more than 50 pieces of personal track information,constitutes the crime of violating personal information.This is enough to show that track information is the most sensitive personal information,which needs more strict protection given by criminal law.However,there are some differences and difficult problems in the judicial practice of whether infringing the track information constitutes a crime.On one hand,the scope of “rack information” lack of criteria,The Criminal Interpretation of Personal Information in 2017 does not define and enumerate trace information,which leads to judges’ different understanding of whether trace information should be directly identifiable,physical,dynamic and technical in judicial practice,resulting in excessive discretion of judges,confusion between trace information and other personal information,and different judgments in the same case.On the other hand,there are also differences in the judicial determination of the conviction criteria for infringement of trace information,such as what is “used by others to commit a crime” and how to calculate the number of illegally obtained,sold or provided trace information.On the other hand,the measurement of the quantity of track information should adopt a personalized measurement standard that combines subjective and objective,and dialectically understand the meaning of "used by others to commit crimes".On the other hand,the measurement of the quantity of whereabouts track information should adopt a personalized measurement standard combining subjective and objective,and understand the meaning of "used by others to commit crimes" in a dialectical way,adopt the concept of crime in the sense of violation of law,and should distinguish whether the perpetrators constitute joint crimes. |
