The Regulation Of Big Data Investigation Under The View Of Personal Information Protection

It is inevitable that big data,artificial intelligence and other technologies intervene in human legal activities.This inevitable trend is reflected in criminal investigation and big data investigation.Big data is widely used in investigation,such as data acquisition and collection behaviors such as network information collection and communication record retrieval,as well as intelligent analysis of acquired data.While seeing that big data improves the efficiency and quality of criminal justice activities,we must be aware of the "double-edged sword" attribute of big data investigation.Big data investigation inevitably involves the processing of citizens’ personal information by investigative organs,and this processing is necessary to be regulated,but there is no systematic criminal procedure law in China.The relationship between big data investigation and personal information protection has formed a unity of opposites,which still reflects the dynamic measurement of the basic purpose of "combating crime" and "protecting human rights".Therefore,we should explore how to regulate big data investigation from the perspective of personal information protection and based on the comparative law mirror of the EU model.The first chapter mainly focuses on the basic discussion of big data investigation.Firstly,this paper is based on the narrow sense of big data investigation,that is,big data investigation,which refers to any investigation behavior or measures relying on big data intelligent technology taken by the investigation organ to crack down on criminal acts that have occurred or have not yet occurred.It plays an important role in cracking down on existing crimes,preventing future crimes and reducing the arbitrariness of investigation.Secondly,there are fundamental differences between big data investigation and traditional investigation measures.Through comparison,this paper analyzes how big data investigation breaks through the traditional investigation from four aspects,and what risks and challenges it brings to the existing criminal procedure system and principles.Thirdly,it analyzes the two-way promotion of personal information protection and big data investigation.On the one hand,as a new carrier of citizens’ basic rights in the data age,the right to personal information provides a new right path for citizens to avoid illegal big data investigation.On the other hand,the legal and reasonable "information transfer" in big data investigation will promote the effective protection of personal information.The second chapter focuses on combing the big data investigation regulation mode guided by the right to personal information in the EU.First of all,explore the reasons why Europe pursues personal information protection,which comes from its unique legal and cultural background and the promotion and upgrading of privacy protection based on the concept of "dignity" and "honor" in European history.Marked by the introduction of GDPR,it represents the unified development of personal information protection in the EU and has a far-reaching impact on the development of data protection worldwide.Secondly,it specially introduces the legislative practice of EU big data investigation regulation: legal documents such as LED directive have become special data processing norms in the field of criminal justice in the same vein as gdpr.At the same time,it is limited by the particularity of criminal justice in terms of data processing transparency,data subject differentiation and automatic decision-making.Thirdly,the judicial practice of EU big data investigation regulation is analyzed.Represented by the European Court of human rights and the European Court of justice,a relatively unified standard principle is formed: the legitimacy of data processing is the core of traditional review,and the judicial tendency of maintaining a delicate balance between combating crime and data protection in different periods.The third chapter,based on the content of the previous chapter,will evaluate and analyze the EU big data investigation regulation model,and how to effectively learn from this model in China.First of all,the EU big data investigation regulation model has the shortcomings of the coexistence of legislative unification and ambiguity and the unsustainable traditional judicial review.However,under the system of the combination of new unified legislation and traditional justice,great progress has been made in realizing the unified personal information protection within Europe.Secondly,it analyzes the path of personal information protection in big data investigation regulation that China should learn from.Juxtaposed with the EU model is the privacy oriented model of the United States,which is a protection model composed of narrow judicial protection and decentralized legislation,and mainly composed of internal autonomy of the industry,which is not compatible with China’s national conditions.Starting from the independent value function of personal information right,the similarity of national unified legislation of written law and the convergence of national data protection obligations,it is reasonable for China to choose the European Union’s personal information right oriented model in the regulation of big data investigation.Finally,in view of the lack and arbitrary application of China’s big data investigation neutral law,this paper captures the excellent experience applicable to China in the EU model,and lays the foundation for the construction of China’s big data investigation and personal information protection approach in Chapter 4: first,refine the legislative connection between personal information protection and big data investigation regulation;Second,improve the procedural guarantee of the rights of personal information subjects;Third,adjust the boundary of personal information protection with the principle of balancing interests and the principle of distinction.The fourth chapter,on the basis of summarizing the legal regulation approach of EU big data investigation,explores the development approach of big data investigation regulation and personal information protection in China.First,it is guided by the principle of data protection.Adhere to the principle of purpose restriction in personal information processing,improve the application of data minimization principle and data quality principle,and focus on learning from the principle of differential treatment.Second,explore the construction of personal information right in criminal procedure.Firstly,it proves it from the logic and characteristics of rights.Secondly,on the basis of determining the core information subject of criminal procedure(criminal suspect and defendant),we should distinguish procedural and restrictive rights and discuss the contents of personal information rights in criminal proceedings.Finally,on the basis of confirming the rank of personal information right,coordinate the relationship with other criminal litigation rights.Third,strengthen the state’s obligation to protect personal information.The new "big data investigation" is set as a legal investigation measure,and the supporting applicable rules for examination and evidence collection are designed.Under the guidance of the principle of distinction,hierarchical regulations are set for big data investigation according to different standards.In terms of supervision,explore the effective docking between China’s data regulators.Improve the security guarantee of prior data classification and hierarchical protection system and post personal information disclosure report and risk plan system;At the same time,in accordance with the personal information protection law,the criminal law and other laws,the relevant responsible persons shall be clearly accountable,and more judicial remedies shall be refined.