| Since entering the era of big data,data has become one of the indispensable production factors.How to efficiently obtain and process data is a development topic in this era.Web crawler is a fully automated script program based on computer programming language to access,obtain,and store target data according to preset rules.It realizes efficient data processing,and fully automates the capture and processing of large network data.It also has the advantages of low cost and strong scalability,so it is widely used.However,as a neutral technology,web crawler has two sides.On the one hand,it promotes data circulation and brings convenience to data processing,on the other hand,it intensifies the contradiction of data distribution and brings new challenges to data governance.In the process of application of web crawler technology,many legal issues have been raised and debated all the time.The focus of debate has also shifted from the initial anti unfair competition field to the criminal field.How to play the evaluation,protection and protection functions of criminal law is the key to improve the security guarantee system of data elements.Based on the reality,this paper collected a large number of case samples to find the rules and problems of criminal governance of web crawler behavior.Through computer science to interpret the behavior logic and operation mechanism of web crawler behavior,and combined with the meaning of criminal norms,the standard of incrimination of web crawler behavior is clarified.According to the content distribution,the full text can be divided into three parts:The first part focuses on carding the relevant concepts of web crawler and carrying out case statistics,making a preliminary analysis of the samples,laying a solid theoretical foundation for the following discussion.Firstly,the historical evolution and operational structure of the web crawler technology are briefly introduced,and the anti crawler measures are emphatically introduced.They are divided into compromise anti crawler measures and technical anti crawler measures,and the latter is divided into permission review anti crawler measures and access restriction anti crawler measures according to the mechanism of action;Secondly,it discusses that criminal law governance is the only way for web crawlers to be governed from chaos,and demonstrates that they cannot obtain criminal immunity because of technology neutrality;Furthermore,the data analysis of the case samples indicates that the overall number of cases is on the rise,the judgments show regional differences,and the identity of the judgment ideas is found through the distribution of the causes of cases.Finally,starting from the content of the judgment,it points out that the judicial practice departments have the phenomena of random choice of judicial path,uncertain charges,and empty interpretation of the law when dealing with cases related to web crawlers,and points out that the core problem is that the criteria for incrimination of web crawlers are unclear.The second part analyzes the reasons for the ambiguous incrimination standards of web crawlers from the macro and micro perspectives.From a macro perspective,it points out that the judicial practice departments have value orientation differences in handling web crawler cases,specifically the contradiction between the value of data security and the value of data sharing;Furthermore,it analyzes that the separation of the discourse system of the legal profession and the computer profession has led to the judicial staff being unable to correctly understand the facts of the case.From the micro perspective,this paper points out that there are omissions in the understanding of the constituent elements of the crime of web crawler behavior,which are elaborated from two aspects: the elements of the object of behavior and the elements of the constituent behavior.There is a problem of omission of important objects and lack of discrimination of relevant objects in the aspect of the elements of behavior objects.In the aspect of the elements of behavior,it is pointed out that the connotation of the legal level web crawler behavior has been over amplified.It is pointed out that the expressions of the current criminal law norms,such as "violation of national regulations" and "invasion",have certain fuzziness and are difficult to link with the web crawler behavior,It also points out that there are disputes in the specific context,such as the identification of the constituent acts of web crawlers that violate the robots protocol or break through the technical anti crawler measures.The third part,on the basis of establishing the interpretive theory as the research approach,gives the corresponding answers to the causes of formation in order to complete the definition of the standard of incrimination of web crawlers.This part still uses macro and micro levels to discuss problems.At the macro level,we should establish the value orientation of focusing on data sharing and giving consideration to the bottom line of data security,and promote the integration of legal norms and facts with the help of the language of technical norms,so as to promote the integration of discourse systems among professionals.At the micro level,we should form a deep understanding and accurate grasp of the elements of the constitutive elements of crime,attach importance to the missing computer information system at the level of the elements of the object of conduct,and distinguish data and information by virtue of the principle of data stratification,so as to solve the difficult problems of the criteria for criminalization of crawling open information and the handling of the number of crimes;On the component level,it defines the legal connotation of the web crawler behavior,interprets the "violation of national regulations",points out that the essence of illegal crawling is "unauthorized",and uses the access control list to understand the "unauthorized",and based on this,it makes a scenario analysis of the web crawler behavior to break through the robots protocol or technical anti crawling measures. |
