A Criminal Law Study On The Behavior Of Organizing Secretly Brushing Traffic

The gradual emergence and rise of the economic value of network traffic has prompted the growing development of the "false traffic brushing" industry.As a large number of large-scale entities in the current "false traffic brushing" industry,the organization of stealing traffic has become one of the common anomie behaviors in the current network field,it has a serious impact on the management order of cyberspace and the stability of society.At present,there is a lot of debate on the characterization of the organization’s secret traffic behavior in the criminal law academia and judicial practice,mainly focusing on the theory of the crime of illegal business operation,the theory of the crime of destroying the computer information system,the theory of the crime of intrusion and illegal control of the computer information system,the theory of adding new crimes and the theory of innocence.Although all theories have their own rationality,they all have certain shortcomings:the theory of illegal business operation ignores the normative elements of "violating state regulations".The theory of the crime of destroying computer information systems and the crime of trespassing and illegally controlling computer information systems is not comprehensive,and it will lead to the expansion of criminal governance and serious crimes due to the need for accommodating network governance.The theory of adding new crimes overemphasizes and exaggerates the damage caused by such behaviors to the basic order of the digital economy,ignoring the important position of administrative law and private law that preceded the criminal law.The theory of innocence limits the scope of punishment of criminal law because it emphasizes the limited participation of criminal law in "source governance".Therefore,it is necessary to clarify that the legal interests infringed by the behavior of organizing secretly brushing traffic can only be closely related to the security of the computer information system,the limit of the expansion of criminal law in the Internet age lies in not deviating from the legal principle of crime and punishment,the bottom line clauses of the crime of illegal business operations are bound by violation of state regulations,the determination of "intrusion" in the crime of intrusive computer information system follows the substantive standard,the most appropriate regulatory path is to classify the behavior of organizing secretly brushing traffic according to whether the brushing method is offensive or not,divided into organizational peaceful type of dark brush flow behavior and organizational nonpeaceful type of dark brush flow behavior for qualitative analysis.Specifically,the organized and peaceful swiping behavior does not affect the security of the computer system and does not constitute a crime;the behavior of obtaining the website control authority to swipe the traffic in the organized non-peaceful swiping behavior constitutes the crime of illegally controlling computer information systems,the act of selling software with intrusive functions or illegal control functions constitutes the crime of providing programs and tools for invading and illegally controlling computer information systems,and the act of organizing domain name hijacking or creating and disseminating destructive programs constitutes the crime of destroying computer information systems.