American Criminal Surveillance System

Chinese criminal procedure law takes in technical investigation measures to combat crimes,but with too weak restrictions on law enforcement by governments,which clearly signals the idea of "emphasizing crime attack and neglecting human rights protection".We must realize that although technical investigation measures are only parts of the means of criminal investigation,their high invasive characteristics are very outstanding,since they are able to wipe out all the privacy information without the awareness of the parties,making them "transparent " just within one second of tme.In this way,civi rights are very easily to be invaded,which does not match the status of "human rights law" or "small constitution" of criminal procedure law,and does not coordinate with the concept of legal civilization.Especially with the rapid development of high technology,the power of civil rights invasion by these means will become unimaginable,while the necessity of strict regulation is growing urgently.Although the term "technical investigation"is used in place of "surveillance",it is actually the synonym for "surveillance ".Developed through a long history,criminal surveillance system in the United States has evolved its legislative ideas,principles,techniques and specific legal norms into maturity,setting better examples for the world's surveillance laws with high reference values.A comprehensive and in-depth study of the criminal surveillance system of the United States is conducive to the construction and development of the criminal surveillance system in China,as well as legal protection of human privacy.This paper begins with the analysis of the values of criminal surveillance.Based on the reality that the society's understanding of the harm of criminal surveillance mostly comes from intuition and can't clearly explain the sources and degrees of the harm,this dissertation deeply analyzes the positive and negative values of criminal surveillance.In addition to clarifying the positive values,this chapter focuses more on the negative values of criminal surveillance,which will undoubtedly lay the theoretical basis for the legislative regulations on criminal surveillance.On the surface,criminal surveillance negatively violates the rights to communication privacy and communication freedom,which is a great departure from the "freedom values";however,in essence,criminal surveillance is a crucial infringement of the "intellectual privacy right" of citizens,far beyond the scope of the general "privacy right",which affects everyone's intellectual creation activities,as well as civilization creation.In addition,criminal surveillance will also lead to the "cold cicada effect" and "self censorship",which unbalances powers and rights between the two parties,resulting in the risk of extortion,lobbying,and discrimination.The above analysis clearly reveals the necessity of legal regulation of criminal surveillance,clarifies the theoretical basis and values of American criminal surveillance system,which is conducive to a better understanding of its legal norms.The second chapter comprehensively,systematically and clearly combs the development history of American criminal surveillance system,laying the foundation for studying its legislations,judicial concepts,principles,and procedural structures.This chapter tries to image the full picture of the development of American criminal surveillance system,looking very back to the period of the civil war for the first time,making up for the blank of this study.According to the turning point,the development history is divided into five stages:the beginning stage(from the civil war to the implementation of Federal Cmmunication Law in 1934),the establishment stage(from the Second World War to the implementation of Omnibus Crime Control&Safe Streets Act in 1968),the expansion stage(from the implementation of Foreign Intelligence Surveillance Act in 1978),the mature stage(from the implementation of Electronic Communications Privacy Act in 1986),and setback-returning stage(Patriot Act to American Freedom Act).Priviously,most of academic introductions to American surveillance laws are fragments,while this study gives a panoramic display of American criminal surveillance system,highlighting the turning points in during its development,which helps to understand the different driving forces behind the criminal surveillance system.The third chapter focuses on the procedural structures of American criminal surveillance system in greater details,including the application scopes of its main surveillance laws,writ rules,evidence rules and substantive relief measures.The study includes a wide range of coverage of U.S.Constitution,federal case laws,federal surveillance laws,state monitoring laws,etc.Due to the difficulties in understanding differences in the provisions of its surveillance laws,this chapter makes a comparative study of the relevant provisions in such following areas of application objects,communication types,criminal activity types,application procedures,application standards,writ supervision,evidence preservation,exclusion rules of illegal evidence,civil and criminal punishment measures for illegal surveillance etc These comparative studies are helpful for us to learn from the advantages and avoid the disadvantages in order to construct Chinese criminal surveillance system scientifically.Chapter four,on the basis of the previous research,refines the evolution of the legislative and judicial principles of American criminal surveillance system:surveillance banning principle(from the post Civil War to the establishment of the FBI);physical invasion principle(from the establishment of the FBI to 1967:criminal surveillance was not against law since no physical invasion could be found with surveillance.);privacy expectation principle and Constitution principle(surveillance must meet the requirements of the fourth amendment of the U.S.Constitution,supplying "reasonable causes" when applying for writs).The evolution of these principles directly reflects the fighting history between public power and human rights in the development of the criminal surveillance system in the United States,which has a very important guidance and reference significance for the construction of surveillance legal system and privacy protection legal system in China.In the fifth chapter,the author makes an objective analysis of the problems existing in the American surveillance monitoring system,including its legal system framework,procedural conflicts of legal norms,conflicts of civil rights protection levels,coordination problems between legislation and the development of science and technology,legislative and judicial supervision problems,law enforcement self-discipline problems,etc.To a greater extent,this part fills in the blank of domestic academic research on American criminal surveillance system.Even though American criminal surveillance system has developed quite mature,the existing problems are also very obvious,which should be objectively evaluated,which will be very conducive to the correct choice of the construction path of the future criminal surveillance system in China.The last chapter of this paper is about the Enlightenment of American criminal surveillance system on China.At present,Chinese criminal procedure law only provides for preliminary and simple criminal surveillance regulation,where surveillance application and authorization are both contraled by police departments,which can not be called a kind of reasonable regulation system.Because criminal surveillance measures are higly civil rights invasive,its legal regulations must be balanced,highlighting civil rights protection standards,procedures and reliefs.These tasks can not be fulfilled only with several provisions in our criminal procedure law.American solution is to develope a couple of specialized individual legislations,such as the Wiretap Act,Stored Communications Act and so on,which needs to be regulated by many special laws,where procedural regulations and substantive regulations can be both stipulated very clearly and detailedly,and civil rights protection can be fully reflected.In view of this,this chapter draws lessons from the merits of American solutions,putting forward nine issues that need to be addressed in construction of Chinese surveillance laws,including the necessity of enacting the communication privacy protection law,adopting the internationally used term"monitoring" to replace "technical investigation measures",revising article 40 of the Constitution of China to reserve space for ballacing government power and human rights,establishing high standards of communication privacy protection,revising evidence rules,unifying applicatin objects and scopes,improving procedural sanction rules based on the elimination of illegal evidence,tightening supervision mechanism,as well as relief mechanism,etc.